TEXT OF ARTICLE 6
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.
OUTLINE OF ISSUES
Reproduced with permission of UNCITRAL
6A Exclusion or modification of Convention by contract
6A1 Implied exclusion or modification
6B Agreements to apply Convention
6B1 Transactions or goods excluded under arts. 2, 3, 4 or 5
6B2 Place of business of seller and buyer in same State (art. 1(1))
6B3 Transaction not related to a Contracting State (art. 1(1(a) or (b))
6B4 Other factual settings
DESCRIPTORS
Autonomy of parties ; Choice of law ; Exclusion of Convention ; Opting in Convention
CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES
Presented below is a composite list of Art. 6 cases reporting UNCITRAL Digest cases and other Art. 6 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 11 June 2003 citation reported below. Cases are coded to the UNCITRAL Thesaurus.
English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available. There are scholars who believe that there are circumstances in which the UNIDROIT Principles of International Commercial Contracts may be used to interpret or supplement this Article of the CISG. See match-up of this Article with counterpart provisions of the Principles and commentary on this subject. To the extent this reasoning fits, cases on the counterpart provisions of the UNIDROIT Principles may be relevant. To the extent available, such cases may be found on the Unilex website. Germany 31 March 2008 Oberlandesgericht [Appellate Court] Stuttgart (Automobile case) 6B [translation available]
United States 28 September 2007 Federal District Court [Michigan] (Easom Automation Systems, Inc. v. Thyssenkrupp Fabco. Corp.) 6A
Austria 24 September 2007 Oberlandesgericht [Appellate Court] Linz (Laminated glass case) [translation available]
Austria 4 July 2007 Oberster Gerichtshof [Supreme Court] (Auto case) 6A1 [translation available]
United States 27 June 2007 California Appellate Court (Orthotec, LLC v. Eurosurgical S.A.) 6A
United States 31 January 2007 Federal District Court [Minnesota] (Travelers Property Casualty Company of America v. Saint-Gobain Technical Fabrics Canada Limited) 6B
Switzerland 20 December 2006 Bundesgericht [Supreme Court] [translation available]
Germany 23 October 2006 Landgericht [District Court] Bamberg (Plants case) 6B [translation available]
Germany 19 October 2006 Oberlandesgericht [Appellate Court] München (Auto case) 6B [translation available]
Australia 13 October 2006 Supreme Court of New South Wales [Appellate Court] (Italian Imported Foods Pty LKtd v Pucci S.r.l.) 6A
United States 23 August 2006 Federal District Court [New York] (TeeVee Tunes v. Gerhard Schubert GmbH)
Germany 24 May 2006 Oberlandesgericht [Appellate Court] Köln
Belgium 24 April 2006 Hof van Beroep [Appellate Court] Antwerpen (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International) 6A [translation available]
Spain 24 February 2006 Tribunal Supremo [Supreme Court] (Auto accessories case) 6A1
Belgium 15 February 2006 Rechtbank van Koophandel [Commercial Court] Hasselt (Bruggen Deuren BVBA v. Top Deuren VOF) [translation available]
United States 7 February 2006 Federal District Court [Washington State] (Beltappo Inc v. Rich Xiberta, S.A.) 6B
United States 30 January 2006 Federal District Court [Rhode Island] (American Biophysics v. Dubois Marine Specialties) 6A
Austria 23 January 2006 Oberlandesgericht [Appellate Court] Linz (Auto case) 6B [translation available]
United States 6 January 2006 Federal District Court [Pennsylvania] (American Mint LLC v. GOSoftware, Inc.)
France 25 October 2005 Cour de Cassation [Supreme Court] (Weed killer case) 6A1 [translation available]
United States 16 August 2005 Federal District Court [Pennsylvania] (American Mint LLC v. GOSoftware, Inc.) 6B
Austria 8 August 2005 Oberlandesgericht [Appellate Court] Linz (Spacers for insulation glass case) [translation available]
Germany 3 August 2005 Landgericht [District Court] Neubrandenburg (Pitted sour cherries case) 6A [translation available]
Canada 22 July 2005 Supreme Court of Canada (GreCon Dimter Inc v. J.R. Normand Inc. et al.) 6B
Austria 21 June 2005 Oberster Gerichtshof [Supreme Court] (Software case) [translation available]
United States 15 June 2005 Federal District Court [New Jersey] (Valero Marketing v. Greeni Oy) 6B
Austria 24 May 2005 Oberster Gerichtshof [Supreme Court] [translation available]
Russia 16 March 2005 Arbitration Award 155/2004 6A [translation available]
France 25 February 2005 Cour d'appel [Appellate Court] Paris
Switzerland 21 February 2005 Kantonsgericht [Appellate Court] Valais (CNC machine case) [translation available]
Austria 26 January 2005 Oberster Gerichtshof [Supreme Court] [translation available]
Belgium 25 January 2005 Rechtbank van Koophandel [District Court] Tongeren (Scaforn International BV & Orion Metal BVBA v. Exma CPI SA) [translation available]
Russia 24 January 2005 Arbitration Award 68/2004 [translation available]
Italy 11 January 2005 Tribunale [District Court] Padova
Ukraine 2005 Arbitration Award Case no. 48 6A [translation available]
Ukraine 18 November 2004 Arbitration Award (Manufactured articles case) 6A [translation available]
Russia 12 November 2004 Arbitration Award 174/2003
Russia 5 November 2004 Arbitration Award 164/2003 (Grain case) 6A ; 6B [translation available]
Switzerland 3 November 2004 Tribunal Cantonal [Appellate Court] Jura 6B [translation available]
Russia 22 October 2004 Arbitration Award 4/2004 6B [translation available]
Belgium 20 October 2004 Hof van Beroep [Appellate Court] Ghent 6B [translation available]
Belgium 4 October 2004 Hof van Beroep [Appellate Court] Ghent (Deforche NV v. Prins Gebroeders Bouwstoffenhandel BV) 6A [translation available]
Germany 1 June 2004 Landgericht [District Court] Saarbrücken (Pallets case) 6B [translation available]
Austria 21 April 2004 Oberster Gerichtshof [Supreme Court] (Omnibus case) 6B [translation available]
Germany 21 April 2004 Oberlandesgericht [Appellate Court] Düsseldorf [15 U 88/03] [translation available]
Russia 20 April 2004 Arbitration Award 115/2003 6B [translation available]
Ukraine 15 April 2004 Tribunal of International Commercial Arbitration, Ukrainian Chamber of Commerce & Trade 6B [translation available]
Belgium 14 April 2004 Hof van Beroep [Appellate Court] Antwerp (ING Insurance v. HVA Koeling BVBA and Fagard Winand / HVA Koeling BVBA v. Fagard Winand and Besseling Agri-Technic BV) [translation available]
Russia 12 April 2004 Arbitration Award 11/2003 6A [translation available]
Russia 9 April 2004 Arbitration Award 129/2003 6A [translation available]
Belgium 24 March 2004 Rechtbank van Koophandel [Commercial Court] Brussel
Italy 25 February 2004 Tribunale [District Court] Padova [translation available]
Switzerland 19 February 2004 Bundesgericht [Supreme Court]
Germany 2 February 2004 Oberlandesgericht [Appellate Court] Zweibrücken 6B [translation available]
Russia 2 February 2004 Arbitration Award 56/2003 [translation available]
Switzerland 18 December 2003 Handelsgericht [Commercial Court] Aargau (Building material and timberware case) 6A [translation available]
Austria 17 December 2003 Oberster Gerichtshof [Supreme Court] 6B [translation available]
Switzerland 11 December 2003 Kantonsgericht [District Court] Zug
China 10 December 2003 CIETAC Arbitration Award [CISG 2003/04] (Agricultural tools dumped products case) [translation available]
Switzerland 24 October 2003 Handelsgericht [Commercial Court] Zürich
Switzerland 20 October 2003 Kantonsgericht [District Court] Schaffhausen [detailed abstract available]
Spain 19 September 2003 Audiencia Provincial [Appellate Court] Ciudad Real
Switzerland 19 September 2003 Cour de Justice [Appellate Court] Genève Russia 17 September 2003 Arbitration Award No. 24/2003 [translation available]
Switzerland 22 August 2003 Appellationsgericht [Appellate Court] Basel 6B [translation available]
Russia 15 August 2003 Arbitration Award No. 57/2001 6B [translation available]
Russia 25 June 2003 Arbitration Award No. 151/2002 6A ; 6B [translation available]
Russia 16 June 2003 Arbitration Award No. 135/2002 [translation available]
* United States 11 June 2003 U.S. Circuit Court of Appeals [5th Cir.] (BP Oil International v. Empresa Estatal Petroleos de Ecuador) 6B
Netherlands 21 May 2003 Rechtbank [District Court] Zwolle (Remeha B.V. v. Keramab N.V.)
Germany 30 April 2003 Bundesgerichtshof [Federal Supreme Court] [translation available]
Germany 25 March 2003 Landgericht [District Court] Köln [translation available]
Switzerland 11 February 2003 Handelsgericht [Commercial Court] St. Gallen [detailed abstract available]
United States 29 January 2003 U.S. District Court [Illinois] (Ajax Tool Works v. Can-Eng Manufacturing) 6A ; 6B
Switzerland 3 December 2002 Handelsgericht [Commercial Court] St. Gallen [translation available]
Russia 2 December 2002 Arbitration Award No. 18/2002 6B [translation available]
Netherlands 15 October 2002 Netherlands Arbitration Institute Case No. 2319 [English text]
Russia 11 October 2002 Arbitration Award No. 62/2002 [translation available]
Russia 6 September 2002 Arbitration Award No. 217/2001 6A [translation available]
Germany 26 July 2002 Oberlandesgericht [Appellate Court] Zweibrücken [translation available]
Switzerland 9 July 2002 [Commercial Court] Zürich 6B [translation available]
Germany 2 July 2002 Landgericht [District Court] Saarbrücken 6B [translation available]
* Belgium 15 May 2002 Hof van Beroep [Appellate Court] Gent 6A [translation available]
Switzerland 23 April 2002 Kantonsgericht [District Court] Schaffhausen [translation available]
Switzerland 11 April 2002 Tribunal Cantonal [Appellate Court] Vaud
United States 26 March 2002 U.S District Court [Southern Dist., NY] (St. Paul
Insurance v. Neuromed) 6B
China 5 March 2002 Guangxi Beihai Maritime Court 6B [translation available]
Bulgaria 28 February 2002 Bulgaria Chamber of Commerce Arbitration award, Case 26/00 6B [translation available]
Belgium 18 February 2002 Rechtbank van Koophandel [District Court] Ieper 6A
* Belgium 15 January 2002 Tribunal de commerce [District Court] Namur 6B [translation available]
Austria 14 January 2002 Oberster Gerichtshof [Supreme Court] 6B [translation available]
ICC 2002 International Court of Arbitration, Case 11333 (Machine case) 6b [English text]
France 6 November 2001 Cour d'appel [Appellate Court] Paris 6B
* Austria 22 October 2001 Oberster Gerichtshof [Supreme Court] [1 Ob 77/01g] 6B [translation available]
Germany 10 October 2001 Oberlandesgericht [Appellate Court] Rostock 6B [translation available]
* United States 27 July 2001 U.S. District Court [California] (Asante v. PMC-Sierra)
6B
* France 26 June 2001 Cour de Cassation [Supreme Court] [Q 99-16.118] 6A1 [translation available]
Russia 25 June 2001 Arbitration Court [Appellate Court] for Moscow Region (Case No. KG-A40/3057-01) 6B [translation available]
Germany 28 May 2001 Oberlandesgericht [Appellate Court] Köln (Motorcycle clothing and accessories case) 6B [translation available]
United States 1 May 2001 U.S. District Court [California] (China National Metal
Products v. Digital) 6B
Belgium 25 April 2001 Rechtbank van Koophandel [District Court] Veurne 6A [translation available]
Belgium 19 April 2001 Rechtbank van Koophandel [District Court] Kortrijk 6A
; 6B
Bulgaria 12 June 2001 Bulgaria Chamber of Commerce Arbitration award, Case 41/00 6B [translation available]
Denmark 15 February 2001 Højesteret [Supreme Court] [translation available]
Australia 1 February 2001 Supreme Court of South Australia (Perry Engineering v. Bernold) 6B
France 30 January 2001 Cour d'appel [Appellate Court] Amiens
Belgium 29 January 2001 Rechtbank van Koophandel [District Court] Ieper
Spain 16 November 2000 Audiencia Provincial [Appellate Court] Alecante 6A1 [translation available]
* Germany 12 October 2000 Landgericht [District Court] Stendal 6A [translation
available]
Austria 28 September 2000 Oberlandesgericht [Appellate Court] Graz (Computer telephone board case) [translation available]
Germany 13 September 2000 Landgericht [District Court] Memmingen (Plastic filter plate case) [translation available]
* Germany 30 August 2000 Oberlandesgericht [Appellate Court] Frankfurt 6B [translation available]
* Italy 12 July 2000 Tribunale [District Court] Vigevano 6A [translation available]
Netherlands 29 June 2000 Arrondissementsrechtbank [District Court] Alkmaar 6B
* Italy 19 June 2000 Suprema Corte di Cassazione [Supreme Court] 6A [translation available]
Austria 15 June 2000 Oberlandesgericht [Appellate Court] Graz [translation available]
Russia 6 June 2000 Arbitration award 406/1998 6B [translation available]
Russia 30 May 2000 Arbitration award 30 May 2000 6B [translation available]
Austria 28 April 2000 Oberster Gerichtshof [Supreme Court] 6B [translation available]
Austria 13 April 2000 Oberster Gerichtshof [Supreme Court] 6B [translation available]
Belgium 13 April 2000 Rechtbank van Koophandel [District Court]
Belgium 29 March 2000 Hof van Beroep [Appellate Court] Gent
* Austria 21 March 2000 Oberster Gerichtshof [Supreme Court] [translation available]
Austria 9 March 2000 Oberster Gerichtshof [Supreme Court] [translation
available]
* Russia 24 January 2000 Arbitration award 54/1999 [translation available]
China 2000 CIETAC Arbitration Award [CISG 2000/17] (Souvenir coins case) 6A [translation available]
ICC 2000 International Court of Arbitration, Case 10329 6B [English text]
ICC 2000 International Court of Arbitration, Case 9781 6B [English text]
* Germany 27 December 1999 Oberlandesgericht [Appellate Court] Dresden 6B [translation available]
Germany 28 October 1999 Oberlandesgericht [Appellate Court] Braunschweig
6A [translation available]
Austria 29 June 1999 Oberster Gerichtshof [Supreme Court] [translation available]
Switzerland 8 June 1999 Tribunale d'appello [Appellate Court] Lugano 6A [translation available]
* ICC June 1999 International Court of Arbitration, Case 9187 6B [English text]
Ukraine 10 May 1999 Arbitration Award (Sunflower seeds meal case) 6B [translation available]
United States 9 March 1999 State District Court [Minnesota] (KSTP-FM v.
Specialized Communications) 8B
ICC March 1999 International Court of Arbitration, Case 9978 [English text]
Austria 24 February 1999 Oberlandesgericht [Appellate Court] Graz (Military weapons case) [translation added]
* Switzerland 10 February 1999 Handelsgericht [Commercial Court] Zürich [translation available]
Netherlands 9 February 1999 Gerechtshof [Appellate Court] Arnhem 6A
Germany 13 January 1999 Oberlandesgericht [Appellate Court] Bamberg 6B [translation available]
* Germany 29 December 1998 Hamburg Arbitration proceeding 6B [translation available]
Switzerland 16 December 1998 Handelsgericht [Commercial Court] Zürich 6A
Belgium 2 December 1998 Rechtbank van Koophandel [District Court] Hasselt 6A
* Germany 25 November 1998 Bundesgerichtshof [Federal Supreme Court] 6B
[translation available]
Germany 24 November 1998 Landgericht [District Court] Bielefeld 6A
[translation available]
Switzerland 23 November 1998 Bezirksgericht [District Court] Weinfelden (Milking machinery case) 6A [translation available]
Russia 22 October 1998 Arbitration award 196/1997 6B [translation available]
* Austria 15 October 1998 Oberster Gerichtshof [Supreme Court] 6B [translation available]
Germany 5 October 1998 Oberlandesgericht [Appellate Court] Hamburg 6B
[translation available]
Austria 10 September 1998 Oberster Gerichtshof [Supreme Court]
Germany 2 September 1998 Oberlandesgericht [Appellate Court] Celle 6B
[translation available]
ICC September 1998 International Court of Arbitration, Case 9419
Switzerland 30 June 1998 Kantonsgericht Wallis / Tribunal cantonal Valais [Canton Appellate Court] (Granite stones case) [translation available]
* Germany 23 June 1998 Oberlandesgericht [Appellate Court] Hamm [translation available]
Germany 8 May 1998 Landgericht [District Court] Aurich
Germany 6 May 1998 Oberlandesgericht [Appellate Court] Hamm 6A
Russia 14 April 1998 Arbitration award 47/1997 [translation available]
China 24 March 1998 CIETAC Arbitration proceeding 6A [translation available]
Austria 11 March 1998 Oberlandesgericht [Appellate Court] Graz (Timber case) [translation available]
Russia 2 March 1998 Arbitration award 201/1997
ICC March 1998 International Court of Arbitration, Case 9117 [English text]
Russia 16 February 1998 High Arbitration Court [Information Letter No. 29] 6B
Austria 12 February 1998 Oberster Gerichtshof [Supreme Court] 6B [translation
available]
Bulgaria 2 February 1998 Bulgaria Chamber of Commerce Arbitration award, Case 20/1997 6A [translation available]
* Germany 21 January 1998 Oberlandesgericht [Appellate Court] München (Insulating materials case) [translation available]
Austria 10 December 1997 Vienna Arbitration award S 2/97 6A [translation available]
* Switzerland 3 December 1997 Kantonsgericht [District Court] Nidwalden (Furniture case) 6B [translation available]
Netherlands 20 November 1997 Gerechtshof [Appellate Court] Amsterdam
* France 15 October 1997 Cour d’appel [Appellate Court] Paris
Belgium 6 October 1997 Rechtbank van Koophandel [District Court] Kortrijk 6A [translation available]
Bulgaria 29 September 1997 Bulgaria Chamber of Commerce Arbitration award 71/1994 6A1 [translation available]
Switzerland 26 September 1997 Handelsgericht [Commercial Court] Aargau (Cutlery case) [translation available]
Germany 2 September 1997 Landgericht [District Court] Siegen China 5 August 1997 CIETAC Arbitration Award [CISG/1997/25] (Cold-rolled coils case) 6A [translation available]
* Germany 23 July 1997 Bundesgerichtshof [Federal Supreme Court] [VIII ZR
130/96] [Benetton I] 6A
Germany 23 July 1997 Bundesgerichtshof [Federal Supreme Court] [VIII ZR
134/96] [Benetton II] 6B [translation available]
* Germany 9 July 1997 Oberlandesgericht [Appellate Court] München [7 U 2070/97] [translation available]
* Germany 9 July 1997 Oberlandesgericht [Appellate Court] München [7 U 2246/97] (Fitness equipment case) 6B [translation available]
Germany 9 July 1997 Oberlandesgericht [Appellate Court] Köln 6B [translation available]
* Germany 25 June 1997 Oberlandesgericht [Appellate Court] Karlsruhe 6B
[translation available]
Hungary 8 May 1997 Budapest Arbitration award Vb 96036
Germany 17 April 1997 Landgericht [District Court] Frankenthal
China 4 April 1997 CIETAC Arbitration Award [CISG/1997/04] (Black melon seeds case) [translation available]
* Austria 4 March 1997 Oberlandesgericht [Appellate Court] Wien
Russia 3 March 1997 Arbitration award 82/1996 6A [translation available]
Switzerland 20 February 1997 Bezirksgericht [District Court] Saane [translation available]
* Austria 11 February 1997 Oberster Gerichtshof [Supreme Court]
Germany 5 February 1997 Bundesgerichtshof [Federal Supreme Court] 6A1 [ULIS precedent]
* Switzerland 5 February 1997 Handelsgericht [Commercial Court] Zürich [translation available]
Germany 31 January 1997 Oberlandesgericht [Appellate Court] Koblenz [translation available]
* Germany 8 January 1997 Oberlandesgericht [Appellate Court] Köln [translation available]
* Switzerland 8 January 1997 Obergericht [Appellate Court] Luzern [translation available]
Belgium 6 January 1997 Rechtbank van Koophandel [District Court] Kortrijk
ICC 1997 International Court of Arbitration, Case 8855
* France 17 December 1996 Cour de Cassation [Supreme Court] 6B [translation available]
Austria 9 December 1996 Bezirksgericht [District Court] Wels
* Germany 4 December 1996 Bundesgerichtshof [Federal Supreme Court] [translation available]
ICC December 1996 International Court of Arbitration, Case 8482 6A ; 6B
[English text]
ICC December 1996 International Court of Arbitration, Case 8769 6B [English
text]
Netherlands 20 November 1996 Arrondissementsrechtbank [District Court]
Utrecht
Germany 2 October 1996 Landgericht [District Court] Heidelberg
France 26 September 1996 Cour d'appel [Appellate Court] Paris
Germany 30 August 1996 Hamburg Arbitration award 6A1 [translation available]
Netherlands 5 June 1996 Gerechtshof [Appellate Court] Leeuwarden
Germany 21 May 1996 Oberlandesgericht [Appellate Court] Köln 6A [translation
available]
Netherlands 7 May 1996 Gerechtshof [Appellate Court] Arnhem
Germany 25 April 1996 Bundesgerichtshof [Supreme Court]
Bulgaria 24 April 1996 Bulgaria Chamber of Commerce Arbitration award 56/1995 [translation available]
China 29 March 1996 CIETAC Arbitration Award [CISG/1996/15] (Caffeine case) 6B [translation available]
* Germany 21 March 1996 Hamburg Arbitration award 6B [translation available]
* Germany 15 March 1996 Oberlandesgericht [Appellate Court] Frankfurt [Benetton
I]
Germany 15 March 1996 Oberlandesgericht [Appellate Court] Frankfurt [Benetton
II]
* Switzerland 11 March 1996 Tribunal Cantonal [Appellate Court] Vaud [01 93 1061] 6B [translation available]
* Germany 15 February 1996 Landgericht [District Court] Kassel [11 O 4185/95]
China 5 February 1996 CIETAC Arbitration Award [CISG/1996/07] (Antimony ingot case) 6B [translation available]
United States 6 December 1995 Federal Appellate Court [2nd Circuit] (Delchi Carrier v. Rotorex) 6B
Russia 1 December 1995 Arbitration award 22/1995 6B [translation available]
* Hungary 17 November 1995 Budapest Arbitration award Vb 94124
Belgium 18 October 1995 Rechtbank van Koophandel [District Court] Hasselt 6A
* Germany 12 October 1995 Landgericht [District Court] Trier [translation available]
Germany 11 October 1995 Landgericht [District Court] Düsseldorf 6A ; 6B
[translation available]
Germany 6 October 1995 Amtsgericht [Lower Court] Kehl [translation available]
* ICC October 1995 International Court of Arbitration, Case 8453 6A ; 6B [English text]
* France 26 September 1995 Cour d'appel [Appellate Court] Colmar
[translation available]
Germany 20 September 1995 Oberlandesgericht [Appellate Court] Nürnberg
France 13 September 1995 Cour d'appel [Appellate Court] Grenoble [translation available]
* Germany 9 June 1995 Oberlandesgericht [Appellate Court] Hamm 6B [translation available]
Netherlands 7 June 1995 Arrondissementsrechtbank [District Court] 's
Gravenhage 6B
* Germany 29 May 1995 Landgericht [District Court] München (Computer hardware case) [translation available]
* Germany 24 May 1995 Oberlandesgericht [Appellate Court] Celle [translation available]
Germany 2 May 1995 Landgericht [District Court] Kassel [Benetton I]
China 28 April 1995 CIETAC Arbitration Award [CISG/1995/08] (Rolled wire rod coil case) 6B [translation available]
* France 26 April 1995 Cour d'appel [Appellate Court] Grenoble (Alain Veyron v. Ambrosio) [translation available]
Netherlands 26 April 1995 Arrondissementsrechtbank [District Court] Almelo
Russia 25 April 1995 Arbitration award 142/1994 [translation available]
* United States 12 April 1995 Court of Appeals of Oregon (GPL Treatment v. Louisiana-Pacific)
* Germany 5 April 1995 Landgericht [District Court] Landshut 6A1 [translation available]
Russia 16 March 1995 Arbitration award 155/1994 [translation available]
* Switzerland 16 March 1995 Kantonsgericht [District Court] Zug 6B
ICC March 1995 International Court of Arbitration, Case 7645 [English text]
* Germany 8 February 1995 Oberlandesgericht [Appellate Court] München [7 U 3758/94] (Plastic granulate case) 6A1 [translation available]
Belgium 24 January 1995 Rechtbank van Koophandel [District Court] Hasselt 6A
ICC January 1995 International Court of Arbitration, Case 7754 6A1 [English text]
ICC 1995 International Court of Arbitration, Case 8128 6B [translation available]
* ICC 1995 International Court of Arbitration, Case 8324 6B
Russia 17 November 1994 Arbitration award 493/1993
* Austria 10 November 1994 Oberster Gerichtshof [Supreme Court] [translation available]
Russia 3 November 1994 Arbitration award 442/1993 6B
United States 9 September 1994 Federal District Court [Northern Dist. NY]
(Delchi Carrier v. Rotorex) 6B
* Germany 26 August 1994 Oberlandesgericht [Appellate Court] Köln [translation available]
Netherlands 11 August 1994 Arrondissementsrechtbank [District Court]
Leeuwarden
* Germany 5 July 1994 Landgericht [District Court] Giessen
* Switzerland 29 June 1994 Tribunal Cantonal [Appellate Court] Valais (Furniture case) 6B [translation available]
* Austria 15 June 1994 Vienna Arbitration award SCH-4318 6A [translation available]
Netherlands 15 June 1994 Arrondissementsrechtbank [District Court] Amsterdam
Germany 14 June 1994 Amtsgericht [Lower Court] Nordhorn
* Italy 19 April 1994 Florence Arbitration award 6A1 [translation available]
* Germany 22 February 1994 Oberlandesgericht [Appellate Court] Köln 6B
[translation available]
Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 32/93] 6B [translation available]
Germany 24 January 1994 Kammergericht [Appellate Court] Berlin [translation available]
Hungary 17 January 1994 Budapest Arbitration award Vb 92068
* ICC 1994 International Court of Arbitration, Case 7565 [English text]
* ICC 1994 International Court of Arbitration, Case 7660
* ICC 1994 International Court of Arbitration, Case 7844 6A
Germany 1 December 1993 Landgericht [District Court] Hanover 6A
Germany 18 November 1993 Oberlandesgericht [Appellate Court] Düsseldorf
* Germany 17 September 1993 Oberlandesgericht [Appellate Court] Koblenz 6A [translation available]
* Germany 2 July 1993 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]
* ICC 26 March 1993 International Court of Arbitration, Case 6653 [translation available]
* Italy 14 January 1993 Tribunale Civile [District Court] Monza [translation available]
* Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) [translation available]
* Germany 8 January 1993 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]
ICC 1993 International Court of Arbitration, Case 6653 6B [translation available]
* Germany 20 November 1992 Oberlandesgericht [Appellate Court] Karlsruhe (Frozen chicken case) [translation available]
Germany 9 July 1992 Landgericht [District Court] Düsseldorf
Germany 23 March 1992 Landgericht [District Court] Saarbrücken
ICC 1992 International Court of Arbitration, Case 7585 6B [English text]
Germany 13 August 1991 Landgericht [District Court] Stuttgart (Women's clothes case) 6A [translation available]
* United States 24 October 1989 Federal International Trade Court (Orbisphere v. U.S.) 6A ; 6B
UNCITRAL CASE DIGEST
The UNCITRAL Digest of case law on the United
A/CN.9/SER.C/DIGEST/CISG/6 [8 June 2004]
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.
DIGEST OF ARTICLE 6 CASE LAW
1. According to article 6 of the
Convention, the parties may exclude the Convention’s application (totally or
partially) or derogate from its provisions. Therefore, even if the Convention
is otherwise applicable, one must nevertheless determine whether the parties
have excluded it or derogated from its provisions in order to conclude that the
Convention applies in a particular case.[1]
According to various courts, the possibility of opting-out is subject to a
clear intent of the parties.[2] 2. By allowing the parties to exclude the Convention and derogate from its provisions, the drafters affirmed the
principle according to which the primary source of the rules governing
international sales contracts is party autonomy.[3]
In doing so, the drafters clearly acknowledged the Convention’s non-mandatory
nature [4]
and the central role that party autonomy plays in international commerce and,
in particular, in international sales.[5]
3. Article 6 makes a distinction between the exclusion of the application of the Convention and the derogation from some
of its provisions. Whereas the former does not encounter any limitations, the
latter does. Where one of the parties to the contract for the international
sale of goods has its place of business in a State that has made a reservation
under article 96,[6]
the parties may not derogate from or vary the effect of article 12. In
those cases, any provision "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"
(art. 12). All other provisions may be derogated from.[7] 4. Although the Convention does not expressly
mention it, there are other provisions that the parties cannot derogate from,
more specifically, the public international law provisions (i.e.
arts. 89-101). This is due to the fact that those provisions address
issues relevant to contracting States rather than private parties. It should be
noted that this issue has not yet been addressed by case law. 5. The applicability of the Convention can be
expressly excluded by the parties. In respect of this kind of exclusion, two
lines of cases have to be distinguished: the exclusion with and the exclusion
without any indication by the parties of the law applicable to their contract.
In those cases in which the Convention’s application is excluded with an
indication of the applicable law, which in some countries can be made in the
course of the legal proceedings,[8] the law applicable will be that applicable by virtue of the rules of private international law of the forum,[9] which in most countries makes applicable the law chosen by the parties.[10]
Where the Convention is expressly excluded without an indication of the
applicable law, the applicable law is to be identified by means of the private
international law rules of the forum. 6. A number of courts have considered the
question of whether application of the Convention can be implicitly excluded.
According to many courts,[11]
the lack of an express reference in the Convention to the possibility of
implicitly excluding its application does not preclude it. This view is
supported by a reference in the Official
Records, which shows that the majority of delegations were opposed to the
proposal advanced during the diplomatic conference according to which a total
or partial exclusion of the Convention could only be made "expressly".[12]
The express reference in the Convention to the possibility of an implicit
exclusion merely "has been eliminated lest the special reference to ‘implied’
exclusion might encourage courts to conclude, on insufficient grounds, that the
Convention had been wholly excluded".[13]
According to few court decisions [14]
and an arbitral award,[15]
however, the Convention cannot be excluded implicitly, on the grounds that the
Convention does not expressly provide for that possibility. 7. A variety of ways of implicitly excluding
the Convention have been suggested. One possibility is for the parties to
choose the law [16] of a
Non-contracting State as the law applicable to their contract.[17] 8. The choice of the law of a Contracting
State as the law governing the contract poses more difficult problems. It has
been suggested in an arbitral award [18]
and several court decisions [19]
that the choice of the law of a Contracting State ought to amount to an
implicit exclusion of the Convention’s application, since otherwise the choice
of the parties would have no practical meaning. Most court decisions [20]
and arbitral awards,[21]
however, take a different view. The grounds for that view may be summarized as
follows: on the one hand, the Convention is part of the law of the Contracting State chosen by the parties and,
on the other, the choice of the law of the
Contracting State functions to identify the law by which the gaps in the
Convention must be filled.[22]
According to this line of decisions, the choice of the law of a Contracting State, if made without
particular reference to the domestic law of that State, does not appear to
exclude the Convention’s applicability. Of course, where the parties clearly
chose the domestic law of a Contracting State to apply, the Convention must be
considered as having been excluded.[23] 9. The choice of a forum may also lead to the
implicit exclusion of the Convention’s applicability. In those cases, however,
where the forum chosen is located in a contracting State and there is evidence
that the parties wanted to apply the law of the forum, two arbitral tribunals
have applied the Convention.[24] 10. The question has arisen of whether the Convention’s application is also excluded where the parties argue a case on the
sole basis of a domestic law despite the fact that all of the Convention’s
criteria of applicability are met. In those countries where the judge must
always apply the correct law even if the parties based their arguments on a law
that does not apply in the case (jura novit curia), the mere fact that the parties argued on the sole basis of a domestic law did not in itself lead to the exclusion of the Convention.[25]
One court found that if the parties are not aware of the Convention’s
applicability and argue on the basis of a domestic law merely because they
believe that this law is applicable, the judges will nevertheless have to apply
the Convention.[26] In one country which does not recognize the principle of jura novit curia, a court applied domestic law when the parties argued their case by reference to domestic sales law.[27] This approach has also been adopted by a court [28] as well as an arbitral tribunal [29]
sitting in countries that acknowledge the principle jura novit curia. 11. According to one court decision, the inclusion of Incoterms by the parties does not constitute an implicit exclusion of the Convention.[30] 12. While the Convention expressly provides the parties with the possibility of excluding its
application either in whole or in part, it does not address the issue of
whether the parties may make the Convention applicable when it would not
otherwise apply. This issue was expressly dealt with by the 1964 Hague
Convention relating to a Uniform Law on the Formation of Contracts for the
International Sale of Goods, which contained a provision, article 4, that
expressly provided the parties with the possibility of "opting in". The fact
that the Convention does not contain a provision comparable to that article
does not necessarily mean that the parties are not allowed to "opt in". This
view is also supported by the fact that a proposal made by the former German
Democratic Republic during the diplomatic conference [31]
that the
Convention should apply even where the preconditions for its application are
not met, as long as the parties wanted it to be applicable. This proposal was
rejected. It was noted during the
discussions that the proposed text was unnecessary in that the principle of
party autonomy was sufficient to allow the parties to "opt in" to the
Convention. FOOTNOTES
* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.
[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.] 1. See
CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>];
CLOUT case No. 338 [GERMANY Oberlandesgericht [Appellate Court] Hamm 23 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980623g1.html>];
CLOUT case No. 223 [FRANCE Cour d’appel [Appellate Court] Paris 15 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971015f1.html>] (see full text of the decision);
CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (see full text of the decision);
CLOUT case No. 190 [AUSTRIA Oberster Gerichtshof [Supreme Court] 11 February 1997, available online at <http://cisgw3.law.pace.edu/cases/970211a3.html>] (see full text of the decision);
CLOUT case No. 311 [GERMANY Oberlandesgericht [Appellate Court] Köln 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108g1.html>] (see full text of the decision);
CLOUT case No. 211 [SWITZERLAND Tribunal Cantonal [Appellate Court] Vaud 11 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960311s1.html>] (see full text of the decision);
CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951012g1.html>] (see full text of the decision);
CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>] (see full text of the decision);
CLOUT case No. 199 [SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 29 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940629s1.html>] (see full text of the decision);
CLOUT case No. 317 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 20 November 1992, available online at <http://cisgw3.law.pace.edu/cases/921120g1.html>] (see full text of the decision). 2. [UNITED STATES Asante Technologies, Inc. v. PMC-Sierra, Inc. U.S. District Court [California] 27 July 2001, available online at <http://cisgw3.law.pace.edu/cases/010727u1.html>];
[BELGIUM Tribunal de Commerce [District Court] Namur 15 January 2002, available online at <http://cisgw3.law.pace.edu/cases/020115b1.html>]. 3. For a reference to this principle, see
CLOUT case No. 229 [GERMANY Bundesgerichtshof [Federal Supreme Court] 4 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961204g1.html>] (see full text of the decision). 4.
For an express reference to the Convention’s non-mandatory nature, see
[ITALY Suprema Corte di Cassazione [Supreme Court] 5. [GERMANY Landgericht [District Court] Stendal 12 October 2000, available online at <http://cisgw3.law.pace.edu/cases/001012g1.html>]. 6. See article 96: "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 that State." 7. For example, a court has stated that
article 55, relating to open-price contracts, is only applicable where the
parties have not agreed to the contrary
(CLOUT case No. 151 [FRANCE Cour d’appel [Appellate Court] Grenoble 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426f1.html>]), while another court observed that
article 39, relating to the notice requirement, is not mandatory and can
be derogated from [GERMANY Landgericht [District Court] Gießen 5 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940705g1.html>]. Similarly, the Austrian Supreme Court
has concluded that article 57 also can be derogated from
(CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>]). 8. This is true for instance in Germany, as
pointed out in case law; see, for example,
CLOUT case No. 122 [GERMANY Oberlandesgericht [Appellate Court] Köln 26 August 1994, available online at <http://cisgw3.law.pace.edu/cases/940826g1.html>];
CLOUT case No. 292 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>] (see full text of the decision); this is also true in Switzerland, see [SWITZERLAND Handelsgericht [Commercial Court] Zürich 10 February 1999, available online at <http://cisgw3.law.pace.edu/cases/990210s1.html>]. 9. See
CLOUT case No. 231 [GERMANY Bundesgerichtshof [Supreme Court] 23 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970723g1.html>] (see full text of the decision) ;
[GERMANY Oberlandesgericht [Appellate Court] Frankfurt 15 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960315g1.html>]. 10. Where the rules of private international law of the forum are those laid down either in the 1955
Hague Convention on the Law Applicable to International Sales of Goods
Convention, 510 U.N.T.S. 149, in the 1980 Rome Convention on the Law Applicable
to Contractual Obligations (United Nations, Treaty
Series, vol. 1605, No. 28023), or in the 1994 Inter-American
Convention on the Law Applicable to Contractual Obligations (Organization of
American States Fifth Inter-American Specialized Conference on Private
International Law: Inter-American Convention on the Law Applicable to
International Contracts, March 17, 1994, OEA/Ser.K/XXI.5, CIDIP-V/doc.34/94
rev. 3 corr. 2, March 17, 1994, available on the Internet at
<http://www.oas.org/juridico/english/Treaties/b-56.html>), the law chosen by the
parties will govern. 11.
[AUSTRIA Oberster Gerichtshof [Supreme Court] 22 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011022a3.html>];
[FRANCE Cour de Cassation [Supreme Court] 26 June 2001, available online at <http://cisgw3.law.pace.edu/cases/010626f1.html>];
CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>];
[GERMANY Oberlandesgericht [Appellate Court] Desden 27 December 1999, available online at <http://cisgw3.law.pace.edu/cases/991227g1.html>];
CLOUT case No. 273 [GERMANY Oberlandesgericht [Appellate Court] München 9 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970709g1.html>] (see full text of the decision);
[GERMANY Landgericht [District Court] München 29 May 1995, available online at <http://cisgw3.law.pace.edu/cases950529g1/.html>];
CLOUT case No. 136 [GERMANY Oberlandesgericht [Appellate Court] Celle 24 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950524g1.html>] (see full text of the decision). 12. Official
Records of the United Nations Conference on Contracts for the International
Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 85-86. 13. Ibid., 17. 14.
[GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>];
[UNITED STATES Orbisphere Corp. v. United States [Federal] Court of International Trade 24 October 1989, available on the Internet at: <http://cisgw3.law.pace.edu/cases/891024u1.html>]. 15. See Tribunal of International Commercial
Arbitration at the Russian Federation Chamber of Commerce and Industry, award No. 54/1999, referred to on the Internet at <http://cisgw3.law.pace.edu/cases/000124r1.html>. 16. Whether such a choice is to be acknowledged at all depends on the rules of private international law of the forum. 17. See
CLOUT case No. 49 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 2 July 1993, available online at <http://cisgw3.law.pace.edu/cases/930702g1.html>] (see full text of the decision). 18. See
CLOUT case No. 92 [ITALY Arbitration - Ad hoc tribunal Florence 19 April 1994, available online at <http://cisgw3.law.pace.edu/cases/940419i3.html>]. 19.
[FRANCE Cour d’Appel [Appellate Court] Colmar 26 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950926f1.html>];
CLOUT case No. 326 [SWITZERLAND Kantonsgericht [District Court] Zug 16 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950316s1.html>];
CLOUT case No. 54 [ITALY Tribunale [District Court] Monza 14 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930114i3.html>]. 20.
[BELGIUM Hof van Beroep [Appellate Court] Gent 12 Month 2000, available online at <http://cisgw3.law.pace.edu/cases/020515b1.html>];
[GERMANY Oberlandesgericht [Appellate Court] Frankfurt 30 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000830g1.html>];
CLOUT case No. 270 [GERMANY Bundesgerichtshof [Supreme Court] 25 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981125g1.html>];
CLOUT case No. 297 [GERMANY Oberlandesgericht [Appellate Court] München 21 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980121g1.html>] (see full text of the decision);
CLOUT case No. 220 [SWITZERLAND Kantonsgericht [District Court] Nidwalden 3 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971203s1.html>];
CLOUT case No. 236 [GERMANY Bundesgerichtshof [Supreme Court] 23 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970723g2.html>];
CLOUT case No. 287 [GERMANY Oberlandesgericht [Appellate Court] München 9 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970709g1.html>];
CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (see full text of the decision);
CLOUT case No. 214 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 5 February 1997, available online at <http://cisgw3.law.pace.edu/cases/970205s1.html>] (see full text of the decision);
CLOUT case No. 206 [FRANCE Cour de Cassation [Supreme Court] 17 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961217f1.html>] (see full text of the decision);
[GERMANY Landgericht [District Court] Kassel 15 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960215g1.html>];
CLOUT case No. 125 [GERMANY Oberlandesgericht [Appellate Court] Hamm 9 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950609g1.html>];
[NETHERLANDS Arrondissementsrechtbank [District Court] s'Gravenhage 7 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950607n1.html>];
CLOUT case No. 167 [GERMANY Oberlandesgericht [Appellate Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g1.html>] (see full text of the decision);
CLOUT case No. 120 [GERMANY Oberlandesgericht [Appellate Court] Köln 22 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940222g1.html>];
CLOUT case No. 281 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 17 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930917g1.html>];
CLOUT case No. 48 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 8 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930108g1.html>]. 21.
[ICC Court of Arbitration, case No. 9187 of [June 1999], available online at <http://cisgw3.law.pace.edu/cases/999187i1.html>;
CLOUT case No. 166 [GERMANY Hamburg Arbitration Award of 21 March / 21 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960621g1.html>];
[HUNGARY Budapest Arbitration
Award case No. Vb 94124 of 17 November 1995, available online at
<http://cisgw3.law.pace.edu/cases/951117h1.html>];
[ICC Court of Arbitration, case No. 8324 of 1995, available online at <http://cisgw3.law.pace.edu/cases/958324i1.html>];
[ICC Court of Arbitration, case No. 7844 of 1994, available online at <http://cisgw3.law.pace.edu/cases/947844i1.html>];
[ICC Court of Arbitration, case No. 7660 of 23 August 1994, available online at <http://cisgw3.law.pace.edu/cases/947660i1.html>];
[ICC Court of Arbitration, case No. 7565 of 1994, available online at <http://cisgw3.law.pace.edu/cases/947565i1.html>];
CLOUT case No. 103 [ICC Court of Arbitration, case No. 6653 of 26 March 1993, available online at <http://cisgw3.law.pace.edu/cases/936653i1.html>];
CLOUT case No. 93 [AUSTRIA Vienna Arbitration Award case No. SCH-4336 of 15 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940615a3.html>]. 23. [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 30 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000830g1.html>];
[GERMANY Oberlandesgericht [Appellate Court] Frankfurt 15 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960315g1.html>]. 24.
[GERMANY Arbitration Award [Arbitral Tribunal] Hamburg 29 December 1998, available online at <http://cisgw3.law.pace.edu/cases/981229g1.html>];
CLOUT case No. 166 [GERMANY Hamburg Arbitration Award of 21 March / 21 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960621g1.html>]; (see full text of the decision). 25. See
CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>];
CLOUT case No. 125 [GERMANY Oberlandesgericht [Appellate Court] Hamm 9 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950609g1.html>];
[GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>]. 26. See
CLOUT case No. 136 [GERMANY Oberlandesgericht [Appellate Court] Celle 24 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950524g1.html>] (see full text of the decision). 27.
[UNITED STATES GPL Treatment Ltd. v. Louisiana-Pacific Group [Appellate Court] Oregon 12 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950412u1.html>]. 28. [FRANCE Cour de Cassation [Supreme Court] 26 June 2001, available on the Internet at <http://cisgw3.law.pace.edu/cases/010626f1.html>]. 29. [ICC Court of Arbitration case No. 8453 of October 1995, available online at <http://cisgw3.law.pace.edu/cases/958453i1.html>]. 30.
[AUSTRIA Oberster Gerichtshof [Supreme Court] 22 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011022a3.html>]. 31. See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 86, 252-253. Franco Ferrari [*] The text of the UNCITRAL Digest of Case Law on the United Nations Convention on the International Sales of Goods (Digest) relating to Article 6 CISG, not unlike the text relating to other provisions, evidences both the Digest's usefulness as well as its weaknesses.[1] As far as the former
is concerned, it can easily be evinced from the number of court decisions cited in the Digest, the
retrieval of which would otherwise be difficult.[2] Furthermore, the Digest is helpful as it organizes all
decisions under different headings, thus making the research even easier. Also, the fact that the
Digest is published in each of the six official languages of the United Nations allows it to reach more
scholars and practitioners than any other instrument of interpretation. However, the use of all six
official languages, albeit necessary for achieving a more global outreach, does bear some risk,
namely that of certain statements drafted in one language being wrongly translated into another. Although this appears to be a point too general to be made here, in the beginning of a number of
comments on that part of the Digest that deals with Article 6 CISG, this is exactly the time and
place where to make this comment, as an error in the translation from (at least) English to French
did occur. Having drafted the Digest part to be discussed, I can vouch at least for what the drafter
wanted to state in the English version of the relevant part of the Digest. [page 13] The error occurred in relation to that part of the Article 6 Digest (para. 5) that deals with those
cases where the CISG's application is excluded with an indication of the applicable law. According
to the English version of the Digest, the applicable law is determined by virtue of the rules of private
international law of the forum, which in most countries makes applicable the law chosen by the
parties, at least in those countries where the 1980 Convention on the law applicable to contractual
obligations is to be applied. Unfortunately, the French version of the Digest refers to this solution
when dealing with the cases where l'application de la Convention est exclue sans indication
du droit applicable, a line of cases specifically dealt with at a later stage. Apart from this weakness, there are other reasons why one should go beyond the Digest. These
reasons can be summarized as follows: since the Digest cites many (albeit not all) decisions that
deal with a specific provision, there will be cases where a contrast in case law will emerge.
Pursuant to a decision taken by the United Nations Commission on International Trade Law when
authorizing the drafting of the Digest,[3] the Digest itself does not criticize any decision,[4] neither does
it point out those cases that are worth being followed. This means, however, that ultimately the
Digest is not too helpful in guiding the interpreter through the labyrinth of case law which it makes
readily available. If one were to look for a guide, one would have to look elsewhere, for instance
to comments by legal writers such as those made on the occasion of this Conference. Furthermore, the Digest does not deal with all the cases that have been decided by courts in
relation to a given provision. This is of course a natural consequence of there having to be a
deadline for comments to be drafted in order for the Digest to be published, but it poses a problem
nonetheless, as important issues may have been dealt with after the deadline for the Digest's
finalization. In respect of the Digest comments on Article 6 CISG, this is an important issue, given a very recent
Italian court decision [5] which dealt with a particular problem -- namely the effect of the parties' choice
to apply the CISG to [page 14] contracts to which it would otherwise not apply. Although this
issue is referred to in the Article 6 Digest (para. 12), the Digest does not refer to any court
decisions dealing with that issue, even though today there is case law on this issue.[6] In the following pages, I will comment on the decisions referred to in (and missing from) the Article
6 Digest. In doing so, I will be a little more critical then when drafting those Digest comments.
Austria
7
Hungary
1
Russian Federation
1
Belgium
1
ICC
7
Switzerland
5
France
5
Italy
4
United States
4
Germany
29
TOTAL:
64
Nations Convention on the International Sale of Goods [*]
Reproduced with the permission of UNCITRAL
Digest of Article 6 case law
- Introduction
- Derogation
- Express exclusion
- Implicit exclusion
- Opting-in]
ARTICLE 6
Remarks on the UNCITRAL Digest's Comments on Article 6 CISG
It is common knowledge, that even where all the CISG's requirements of applicability (international, substantive, temporal, and personal/territorial)[7] are met, the CISG does not necessarily apply,[8] since pursuant to Article 6,[9] the parties may exclude the CISG's application. Consequently, in order to decide whether the CISG is applicable, one must also look into whether it has been excluded by the parties,[10] as pointed out by several court decisions,[11] some of [page 15] which (albeit not all) are quoted in the Digest.[12] Thus, the lack of an exclusion can be regarded as a (negative) applicability requirement.[13]
By providing for this possibility, the draftsmen of the CISG reaffirmed one of the general principles already embodied in the 1964 Hague Conventions,[14] that is, the principle according to which the primary source of the rules governing international sales contracts is party autonomy,[15] which is why it is no surprise that some court decisions state that the CISG is based upon the general principle of "prevalence of party autonomy."[16] By stating [page 16] that the CISG can be excluded, the drafters clearly acknowledged the dispositive nature [17] -- emphasized also in case law [18] -- and the "central role which party autonomy plays in international commerce and, particularly, in international sales."[19]
As far as party autonomy is concerned,[20] it must be pointed out (as the Digest does in para. 3) that Article 6 CISG refers to two different lines of [page 17] cases.[21 One where the Convention's application is excluded, the other where the parties derogate from -- or modify the effects of -- the provisions of the CISG on a substantive level.[22] These two situations differ from each other in that the former does, according to the CISG, per se not encounter any restrictions,[23] as also pointed out in the Digest (para. 3), whereas the latter is limited, as there are provisions the parties are not allowed to derogate from. Where, for instance, at least one of the parties to the contract governed by the CISG has its place of business in a State that has made a reservation under Article 96, the parties may not derogate from or vary the effect of Article 12. In those cases, according to Article 12, any provision "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."
Although this matter has been referred to in the Digest as well (para. 3), the Digest does not conclusively deal with the effects of such a reservation, not even in its comments on Article 12. It states -- correctly -- that the effects of Article 12 lead to the principle of freedom from form requirements not being per se applicable where one party has its relevant place of business in a State that made an Article 96 declaration.[24] It then cites the contradictory views held in case law in respect of the effects of an Article 96 declaration, unfortunately without stating which view is the correct one: that according to which the sole fact that one party has its place of business in a State that made an Article 96 reservation does not necessarily mean that the form requirements of that State apply,[25] thus letting it (correctly) depend on the law to which the rules of private international of the forum lead whether any form requirements have to be met;[26] or that pursuant to which where one party has its relevant [page 18] place of business in a State that made an Article 96 reservation, the contract must necessarily be concluded or evidenced or modified in writing.[27]
It should be noted that although the Convention does not expressly mention it, there are other provisions that the parties cannot derogate from, as also pointed out by the Digest (para. 4), namely the public international law provisions (i.e. Articles 89-101) [28] As the Digest correctly states, this is due to the fact that those provisions relate to issues relevant to Contracting States rather than private parties. Even though the Digest holds that there is no case law on this point yet, it should be noted that the Tribunale di Vigevano in its rather famous decision of 12 July 2000, expressly took the view referred to in the Digest and stated that Articles 89-101 cannot be derogated from.[29] In a 2005 decision, the Tribunale di Padova not only confirmed that the parties cannot exclude the CISG's final provisions, but it also stated that the parties cannot derogate from Article 28 either.[30] In my opinion, that view is correct, as Article 28 is not directed to the parties, but rather to the courts of [page 19] Contracting States.[31] However, the aforementioned exceptions are the only ones. All other provisions can be derogated from.[32]
III. IMPLIED EXCLUSION OF THE CISG AND CHOICE OF THE APPLICABLE LAW
Party autonomy also played a very important role under the ULIS.[33] A comparison of Article 6 CISG and its "direct predecessor,"[34] Article 3 ULIS, could even lead to the conclusion that under ULIS party autonomy was more widely recognized,[35] since the ULIS expressly stated that its exclusion could also be made implicitly.[36] However, this provision was later criticized,[37] which is why the express reference to the possibility of an implicit exclusion [page 20] was not retained by the drafters of the CISG,[38] even though at the Vienna Diplomatic Conference proposals to reintroduce that express reference were made.[39] In my opinion, this does not mean that under the CISG the exclusion always has to be made expressly,[40] as, however, stated in several court decisions cited -- Once again, without any comment in the Digest,[41] as well [page 21] as in some other court decisions not cited at all.[42] This is evidenced, inter alia, by the fact that "the majority of delegations was ... opposed to the proposal according to which a total or partial exclusion of the Convention could only be made 'expressly'."[43] Consequently, the lack of express reference to the possibility of an implicit exclusion must not be regarded as precluding such possibility.[44] Rather it has a different meaning, to discourage courts from too easily inferring an 'implied' exclusion or derogation.[45] Therefore, an implicit exclusion must be regarded as possible, a view which has already been confirmed by many court decisions.[46] Some of these [page 22] decisions the Digest cites (para. 6 ff.) without commenting on, not unlike the cases holding the opposite view. Of course, there must be clear indications that the parties really wanted such an exclusion,[47] that is, there must be a real -- as opposed to theoretical, fictitious or hypothetical [48] -- agreement of exclusion.[49]
This is not a merely theoretical problem, as evidenced by the variety of ways to implicitly exclude the CISG. A typical [50] way of implicitly excluding the CISG is through the parties' choice of the applicable law.[51] There is no doubt that such a choice must be considered as being an effective exclusion [page 23] of the CISG, at least where the applicable law chosen by the parties is the law of a non-Contracting State.[52] This was true under the ULIS as well [53] and has been confirmed by a German court decision [54] cited in the Digest.
The choice of the law of a Contracting State as the law governing the contract poses more difficult problems.[55] One of these problems relates to the question of whether the CISG is applicable when the parties agree upon a national law, such as French, U.S. or Italian law, as the law applicable to their contract. As the Digest clearly shows (para. 8), the case law is contradictory on this issue as well. Since the Digest, however, simply lists the contradictory cases, once again without commenting on them, the interpreter has to look elsewhere to determine which cases should be followed.
In respect to the issue at hand, several courts,[56] as well as several legal writers,[57] suggest that the indication of the law of a Contracting State ought [page 24] to amount to an (implicit) exclusion of the CISG, because otherwise the indication of the parties would have no practical meaning.[58] In my opinion,[59] however, this solution is not tenable under the CISG,[60] not unlike under the ULIS.[61] The indication of the law of a Contracting State, if made without particular reference to the domestic law of that State,[62] as in two of the cases cited by the Digest,[63] does not per se exclude the Convention's application,[64] [page 25] as confirmed by many court decisions [65] and arbitral awards [66] cited in the [page 26] Digest. This is true even where the law chosen is that of a Contracting State that made an Article 95 reservation.[67]
The application of the Convention does not make the national law irrelevant, as suggested [68] The indication of the law of a Contracting State must be interpreted as both making the CISG applicable (as part of the chosen law) [69] and as determining the law applicable to the issues not governed by the CISG (to the extent to which the parties are allowed to make a choice in respect of those issues),[70] such as the issues relating to the validity, thus avoiding to have to resort to the complex rules of private international law in order to determine the law applicable to the issues not governed by the CISG.[71]
Quid iuris if under the 1964 Hague Conventions the parties have established practices between themselves according to which the reference to the law of a Contracting State had to be interpreted as an exclusion of the uniform sales law and the parties continue to refer to the law of that State even [page 27] after that State becomes a Contracting one to the CISG? Does the continuing reference to the law of that State have to be considered as an exclusion of the CISG? Even though several authors have argued in favor of an affirmative answer to this question,[72] most recently the opposite view was adopted by a German court.[73]
IV. EXCLUSION OF THE CISG BY VIRTUE OF STANDARD CONTRACT FORMS AND CHOICE OF FORUM
The choice of the law of a State -- whether Contracting or not -- does not constitute the sole kind of implicit exclusion which can be used to bar the Convention's application.[74] Indeed, in certain situations, and this was also true under the 1964 Hague Conventions,[75] the use of standard contract forms can lead to the exclusion of the CISG's application.[76] This is true provided that these forms become part of the contract [77] and that (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 CISG and implicitly manifests the parties' intention to have the contract governed by that legal system [78] and [page 28] (b) their use tends at the same time to exclude the application of the CISG as a whole.[79] Where, on the contrary, standard contract forms are intended to merely regulate specific issues in contrast with the CISG, one must presume that only a derogation of some of the CISG provisions is desired.[80]
Furthermore, as pointed out also by the Digest (para. 9), the choice of forum can lead to the exclusion of the CISG's application,[81] and the same is true with reference to the choice of an arbitral tribunal,[82] 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,[83] and (b) the forum must not be located in a Contracting State,[84] otherwise the CISG would be applicable,[85] as confirmed by two arbitral rewards referred to in the Digest.[86] [page 29]
Finally, although this possibility is nowhere referred to in the Digest, parties can exclude the CISG by agreeing that specific issues of their contract be subject to specific provisions of a law different than the CISG, provided, however, that those issues are fundamental ones [87] 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 the uniform one, as pointed out by various court decisions rendered in respect of the 1964 Hague Conventions.[88] As correctly stated in a decision referred to in the Digest (para. 11), the inclusion of Incoterms by the parties does not amount to an implicit exclusion of the CISG.[89]
V. IMPLICIT EXCLUSION AND PLEADINGS ON THE SOLE BASIS OF DOMESTIC LAW
Quid iuris where the parties argue a case on the sole basis of a domestic law despite the fact that all of the CISG's criteria of applicability are met? Although this issue is referred to in the Digest (para. 10), as there is case law on it, the Digest itself does not help to answer the question. The cases it cites are contradictory and the Digest once again does not help to solve the contradiction.
In my opinion,[90] the mere fact that the parties argue on the sole basis of a domestic law does not per se lead to the exclusion of the CISG,[91] a view recently confirmed by several courts,[92] unless the parties are aware of the CISG's applicability or the intent to exclude the CISG can otherwise be [page 30] inferred with certainty. If the parties are not aware of the CISG' s applicability and argue on the basis of a domestic law merely because they believe that this law is applicable, the judges will nevertheless have to apply the CISG on the grounds of the principle iura novit curia, provided that this principle is part of the lex fori.
One of the courts stated this very clearly:
"The fact that during the preliminary legal proceedings in this case the parties based their arguments exclusively on Italian domestic law without any references to the [CISG] cannot be considered an implicit manifestation of an intent to exclude application of the Convention. ... [R]eference in a party's brief to the non-uniform national law of a Contracting State -- even though it is theoretically some evidence of an intent to choose the national law of that State -- does not imply the automatic exclusion of the [CISG]. We will assume that the parties wanted to exclude the application of the Convention only if it appears in an unequivocal way that they recognized its applicability and they nevertheless insisted on referring only to national, non-uniform law. In the present case, it does not appear from the parties' arguments that they realized that the [CISG] was the applicable law ...; we cannot, therefore, conclude that they implicitly wanted to exclude the application of the Convention by choosing to refer exclusively to national Italian law. Thus according to the principle iura novit curia, it is up to the judge to determine which Italian rules should be applied; for the reasons mentioned above, the applicable rules are those in the Vienna Convention."[93]
In light of what has been said thus far, one has to reject the opposite view held by two tribunals (a state court [94] and an arbitral tribunal [95]) according to which pleadings on the sole grounds of domestic law automatically leads to the exclusion of the CISG.
VI. EXPRESS EXCLUSION OF THE CISG
In addition to problems concerning the CISG's implicit exclusion, problems can also arise with respect to its explicit exclusion.[96] In this respect, two lines of cases have to be distinguished: the exclusion with and the [page 31] exclusion without indication of the law applicable to the contract between the parties.[97]
Nulla quaestio in the case in which the CISG is excluded with the indication of the applicable law, indication which under the CISG can, not unlike under the Hague Conventions,[98] also be made in the course of a legal proceeding,[99] at least where this is admissible according to the lex fori,[100] as in Germany [101] and Switzerland for instance,[102] even though the parties will normally make their choice before the conclusion of the contract.[103] In this case, the judge has to apply the law chosen by the parties,[104] 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 Convention on the law applicable to contractual obligations.[105] Where the parties' choice of law is invalid, the contract should [page 32] be governed by the law to be determined on the basis of the rules of private international law of the forum.[106] If this law turns out to be that of a Contracting State to the CISG, its domestic law rather than the CISG will have to be applied.[107]
Quid iuris, however, in the case of an express exclusion without indication of the applicable law, an issue also referred to in the Digest, although there is no case law on it yet?[108] In this case, the preferable view, held by most legal scholars,[109] 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."[110] And whenever these rules refer to the law of a Contracting State, its domestic sales law, not the uniform one, should apply.[111]
Undoubtedly, this rule applies in cases in which the CISG is excluded in toto.[112] However, its application to cases in which it is excluded only partially created disagreement among legal scholars.[113] Some authors favor the view according to which the issues dealt with in the excluded provisions must be [page 33] settled, according to Article 7(2) CISG, in conformity with the CISG's general principles.[114] In my opinion,[115] the better view seems to be the opposite one: the rules to substitute the excluded CISG provisions are to be determined, not unlike in the case of an exclusion in toto of the Convention, by applying the rules of private international law (of the forum State) [116] -- 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 that are "in conformity with the general principles on which [the Convention] is based."[117]
VII. APPLICABILITY OF THE CISG AND OPTING-IN
As stated, the CISG provides for the parties' possibility of excluding (totally or partially) its application. To contrast, the Convention does not address the issue of whether the party may make the Convention applicable when it would otherwise not apply,[118] that is, where the prerequisites for application are not met.[119] [page 34]
As also pointed out in the Digest (para. 12), this issue did not arise at all under the ULIS which embodied a provision, Article 4,[120] that expressly provided for the parties' possibilityof"opting-in."[121] The fact that the drafters did not retain that express reference to the parties' possibility of opting-in should, however, not be interpreted as preventing the parties from being entitled to do so.[122] This view can be justified on the grounds that the proposal (made by the former German Democratic Republic),[123] according to which the CISG should apply even where the preconditions for its application are not met, as long as the parties wanted it to be applicable, was rejected on the sole ground that an express provision to allow such possibility was not necessary,[124] because of the already existing principle of party autonomy.[125] Most recently, this view was confirmed by a Chinese court decision which applied the CISG by virtue of the parties' opting-in to a contract for the sale [page 35] of fish powder which otherwise would have fallen outside the CISG's scope of application or its substantive scope,[126] a decision not referred to in the Digest.
As far as the significance of the parties' "opting-in" is concerned, it must be emphasized that by virtue of the "opting-in," the CISG becomes part of the contract not unlike any other contractual clause.[127] In other words, the choice of the CISG in contracts to which it would otherwise not apply does not constitute a "choice of law," as there are no private international law rules that allow such a "choice" to have a different value. Consequently, it can be presumed, that "[t]he mandatory rules of the applicable law are ... not affected by this [opting-in]."[128] Very recently, this view has been confirmed by the Tribunale di Padova in a decision of 11 January 2005,[129] a decision which the Digest does (obviously) not refer to. Referring to both the 1980 Convention on the law applicable to contractual obligations as well as the 1955 Hague Convention on the law applicable to contracts for the international sale of goods, the Italian court correctly decided that the choice of the CISG as the "law" applicable to a contract in cases where the CISG would otherwise not apply cannot amount to a "choice of law," since the aforementioned conventions do not allow for a choice of law different from State law. [page 36]
Although it is not surprising that the aforementioned Italian decision is not included in the Digest, it poses the problem of how to deal with new case law, of which there is a lot. This is for sure one of the challenges UNCITRAL will face in the future. [page 37]
FOOTNOTES
5. See Tribunale di Padova, Italy, 11 Jan. 2005, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=1005&step=FullText>.
6. For a more detailed analysis of this issue, see infra text accompanying note 118 ff.
8. See FRANCO FERRARI, THE SPHERE OF APPLICATION OF THE VIENNA SALES CONVENTION 20 (1995).
11. For decisions not referred to in the Digest that also refers to the lack of exclusion as an applicability requirement, see Tribunale di Padova, supra note 5; Tribunale di Padova, Italy, 31 Mar. 2004, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=966&step=FullText>; Tribunale di Padova, Italy, 25 Feb. 2004, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=972&step=FullText>.
12. See, e.g., Tribunale di Vigevano, Italy, 12 July 2000, published in GIURISPRUDENZA ITALIANA 281 ff. (2001), also available at <http://cisgw3.law.pace.edu/cases/000712i3.html>; Oberlandesgericht Hamm, Germany, 23 June 1998, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/434.htm>; Cour d'appel Paris, France, 15 Oct. 1997, available at <http://witz.jura.uni-sb.de/CISG/decisions/151097v.htm>; Oberlandesgericht München, Germany, 9 July 1997, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/281.htm>; Oberlandesgericht Karlsruhe, Germany, 25 June 1997, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/263.htm>; Oberster Gerichtshof. Austria, 11 Feb. 1997, available at <http://www.cisg.at/10_150694.htm>; Landgericht Landshut, Germany, 5 Apr. 1995, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/193.htm>; Landgericht Oldenburg, Germany, 15 Feb. 1995, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/197.htm>; Oberster Gerichtshof. Austria, 10 Nov. 1994, published in ZEITSCHRIFT FÜR RECHTSVERGLEICHUNG 79 f. (1995); Tribunal Cantonal Valais, Switzerland, 29 June 1994, published in ZEITSCHRIFT FÜR WALLISER RECHTSPRECHUNG 125 (1994); Amtsgericht Nordhorn, Germany, 14 June 1994, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/259.htm>; Oberlandesgericht Karlsruhe, Germany, 20 Nov. 1992, published in NEUE JURISTISCHE WOCHENSCHRIFTRECHTSPRECHUNGS -- REPORT 1316 (1993); Landgericht Düsseldorf, Germany, 9 July 1992, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/42.htm>.