CROSS-REFERENCES AND EDITORIAL ANALYSIS

Article 1


Editor:

Franco Ferrari[*]


Article 1 sets forth the basic requirements for applicability of the CISG. Other provisions must also be taken into account. The issues arising out of article 1 that are influenced by such provisions are mainly: internationality (article 1(1)), direct applicability (article 1(1)(a)), indirect applicability (article 1(1)(b)), applicability ratione materiae (sale, goods), and exclusion of the CISG.


Internationality (see footnote 1)

Unlike ULIS article 1 or ULF article 1 (see footnote 2), the internationality requirement of the CISG is only satisfied when the contract is between parties having relevant places of business in different States (article 1(1)).

The relevant place of business (see footnote 3). Article 10 states that where a party has multiple places of business, to determine the internationality of the contract (see footnote 4), or for other purposes (see footnote 5), the relevant place of business is that which "has the closest relationship to the contract and its performance" (see footnote 6), "having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract" (see footnote 7).

Can the place of business be a temporary place of sojourn? Must it be a place at which there is a stable business organization? Must the party who contracts at that place have autonomous power? Where the parties have their places of business in the same State but one acts on behalf of an undisclosed foreign principal, can this satisfy the internationality requirement of the CISG?

Article 1(2) answers the last question dispositively. The answer is, No. The internationality of the contract must "appear either from the contract or from dealings between, or from information disclosed by, the parties before or at the conclusion of the contract". The intent is to avoid infringing upon parties reliance on the conclusion of a "domestic" contract (see footnote 8). The preferred answer to the remaining questions is: the place of business cannot be a temporary place of sojourn, such as conference centers or rented space in hotels or exhibitions (see footnote 9); it must be a place at which there is a stable business organization (see footnote 10); the party who contracts at that place must have autonomous power (see footnote 11). The former conclusions should not be controversial. The latter conclusion can perhaps be controversial (see footnote 12).

Irrelevant considerations. Neither the parties' nationality nor their commercial or civil character (or the civil or commercial character of the contract) is relevant to determining the applicability of the Convention. (article 1(3)).


Direct applicability pursuant to article 1(1)(a)

Article 1(1)(a) terms the CISG applicable where the parties have their relevant places of business in different Contracting States. Final provisions of the Convention have a bearing on temporal and other considerations.

Article 99 provides that a State becomes a Contracting State after the lapse of a specific period of time following deposit of its acceptance of the CISG. Under article 100(1), the Formation provisions of the CISG are applicable only when the offer is made on or after the date of the CISG's entry into force in the Contracting State; under article 100(2), for the provisions on Sale of Goods, it is sufficient that the contract be concluded at that time (see footnote 13). Article 92 provides that where a State elects not to be bound by either Part II or Part III of the CISG, it cannot be considered a Contracting State with respect to the Part of the Convention it excludes; and article 93 provides that a State that has more than one territorial unit in which different systems of law are applicable, must be considered a Contracting State with respect to all of its units -- unless it has made a reservation extending the CISG to only one or more of these units. These provisions of the CISG are relevant to indirect applicability pursuant to article 1(1)(b), as well as to direct applicability pursuant to article 1(1)(a).


Indirect applicability pursuant to article 1(1)(b) (see footnote 14)

Article 1(1)(a) substitutes its rule for otherwise applicable rules of private international law; article 1(1)(b) relies on applicable rules of private international law. Article 1(1)(a) limits its application to cases in which both parties have their relevant places of business in Contracting States; article 1(1)(b) expands this application (see footnote 15). Most, but not all Contracting States are bound by article 1(1)(b) (see footnote 16 for comments on the latitude accorded by article 95). Article 1(1)(b) applies the CISG "when the rules of private international law [of the forum] lead to the application of the law of a Contracting State."

RULE ONE (the article 1(1)(b) determinant). Article 1(1)(b) turns applicability of the CISG on rules of private international law of the forum: this can be a forum in a Contracting State that is bound to apply article 1(1)(b), a forum in a Contracting State that is not bound to apply article 1(1)(b), or a forum in a non-Contracting State.

RULE TWO (the gateways that must be crossed). Two prerequisites to implementations of article 1(1)(b): the parties must have their relevant places of business in different States (article 1(1)); the law invoked pursuant to the rules of private international law of the forum must be the law of a Contracting State.

Where these "gateway" requirements have been satisfied and no article 95 declaration has been filed (i.e., a Contracting State that is not bound to apply article 1(1)(b) does not enter into the equation), there is no need to consider Rules Three and Four set forth below. In this situation, the applicable principles are:

"If the two States in which the parties have their [relevant] places of business are Contracting States this Convention applies even if the rule of private international law of the forum would normally designate the law of a third country, such as the law of the State in which the contract was concluded. This result could be defeated only if the litigation took place in a third non-Contracting State, and the rules of private international law of that State would apply the law of the forum, i.e., its own law, or the law of a fourth non-Contracting State to the contract. Even if one or both of the parties to the contract have their [relevant] places of business in a State which is not a Contracting State, the Convention is applicable if the rules of private international law of the forum lead to the application of the law of a Contracting State. In such a situation the question is then which law of sales of that State shall apply. If the parties to the contract are from different States, the appropriate law of sales is this Convention" (see footnote 17).

Where, however, a Contracting State that is not bound by article 1(1)(b) enters the equation, the situation becomes more complicated. In this situation, further rules should be considered.

RULE THREE (a clear case of inapplicability). Although the "gateway" requirements may have been satisfied, if the rules of private international law of a forum in a Contracting State that is not bound to apply article 1(1)(b) invoke the law of that Contracting State, the CISG will not apply other than pursuant to article 1(1)(a): in instances in which the parties have their relevant places of business in different Contracting States (see footnote 18).

RULE FOUR (applicability/inapplicability alternative (a)). Subject to Rules Two and Three (see footnote 19), if the rules of private international law of any State invoke the law of any Contracting State, the CISG will apply (see footnote 20).

Other authors have favored a different Rule Four:

RULE FOUR (applicability/inapplicability alternative (b)). Regardless of the location of the forum, in every instance in which one of the contracting parties has his relevant place of business in a non-Contracting State, and the other party has his relevant place of business in a Contracting State that is not bound by article 1(1)(b), the CISG will not apply.

Applicability of the CISG pursuant to article 1(1)(a) or 1(1)(b) can have many permutations and combinations; one commentator has sought to rule on fifty-four of them (see footnote 21). Rule Four is controversial; hence two alternatives to it. Alternative (a) has support (see footnote 22). Alternative (b) is supported by others (see footnote 23). Germany is a jurisdiction which, recognizing the potential for controversy, sought to provide alternative (b) guidance to its courts by stating in its instrument of ratification that for purposes of article 1(1)(b), a Contracting State that has declared that it will not be bound by article 1(1)(b) should be regarded as a non-Contracting State (see footnote 24).

Applicability exceptions. Where the CISG is otherwise applicable, it will not apply when the parties have excluded the CISG (article 6) or an electio iuris has occurred. Where the CISG is otherwise inapplicable, it can be applied in accordance with applicable law when the parties elect to make the CISG a part of their contract.


Applicability ratione materiae: sales

Although the CISG relates to contracts for international "sales" of goods, it does not expressly define the concept of "sale". A definition of the "sale" contract governed by the CISG can, however, be derived from article 30 and article 53 which set forth the obligations of the seller and of the buyer (see footnote 25). Thus, a sale contract can be defined as a contract by virtue of which the seller has to transfer the property, deliver the goods and hand over any documents relating to them; with the buyer bound to pay the price for the goods, and take delivery of them (see footnote 26).

Other articles that influence the definition of a "sale". Article 29 evidences that contracts modifying an international sales contract can be governed by the rules of the CISG (see footnote 27). From article 73 one can infer that contracts for the delivery of goods by installments fall under the CISG's sphere of application as well (see footnote 28). By requiring the buyer to pay the price, article 53 can have a bearing upon the applicability of the CISG to countertrade contracts ranging from barter transactions, which in all likelihood would not be governed by the CISG (see footnote 29), to other types of countertrade (see footnote 30).

Different types of agreements. Leases or licensing agreements ought not to be governed by the CISG. However, there can be situations in which an agreement that is so titled in fact has the overwhelming characteristics of a sale and will be regarded as a sales transaction governed by the CISG (see footnote 31). Issues can also arise under agency contracts, or frame agreements, e.g., master distributorship agreements and purchases of goods pursuant to such agreements (see footnote 32).

Other applications and restrictions. Article 3 can extend the sphere of application ratione materiae to contracts for the supply of made-to-order goods and to contracts involving the supply of labor and/or services (see footnote 33). There are limits, however. For purposes of the CISG, "contracts for the supply of goods to be produced or manufactured" are not to be considered sales where "the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production" (article 3 (1)); and contracts where the "preponderant part" of the obligations of the party who furnishes the goods consists in the supply of labor or other services are not governed by the CISG (article 3 (2)). The CISG does not define the terms "substantial part" or "preponderant part" (see the editorial analysis of article 3 for a commentary on the manner in which these terms should be defined).

The CISG's sphere of application is also restricted by article 2(a) which excludes consumer sales, i.e., sales "of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use". The intended use of the goods is the criterion on which this exclusion turns (see footnote 34). For a "consumer contract" to be excluded from the sphere of application, the intended personal (family or household) use of the sale must be recognizable to the seller. The burden of proving that the seller neither knew nor ought to have known the "consumer" purpose should be placed on the party claiming the applicability of the CISG (see footnote 35). Article 2(b) and article 2(c) further restrict the sphere of application of the CISG by excluding sales by auction and on execution or otherwise by authority of law.

Issues governed when the CISG is applicable. The CISG does not govern all issues associated with an international "sales" contract as defined above. Article 4, for instance, affirms that, the CISG "governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract." Except as otherwise expressly provided in the CISG, it "is not concerned with: (a) the validity of the contract or of any of its provisions or of any usage; or (b) the effect which the contract may have on the property in the goods sold." Article 11 constitutes an exception to the article 4(a) exclusion: by laying down a principle of informality, it deals with the Statute of Frauds which is generally regarded as a "validity" issue. According to article 5 (see footnote 36), the CISG "does not apply to the liability of the seller for death or personal injury caused by the goods to any person." It does, however, apply to liability for damages caused to goods (see footnote 37). As stated in article 7(2), to fill external gaps such as those mentioned, one must resort to the rules of private international law.


Applicability ratione materiae: goods

Although the CISG does not contain a definition of "goods", there is agreement among scholars that the CISG only governs the international sale of movable tangible goods (see footnote 38). Thus, the international sales of immovables (see footnote 39) and rights (see footnote 40) do not fall within the CISG's sphere of application.

Software. For sales of software, two situations should be contrasted: standard programs recorded on a disk or a tape, and programs specially designed to meet the needs of a specific customer. The former, but not the latter, should be regarded as movable tangible goods that fall within the CISG's sphere of application (see footnote 41).

Other exclusions and inclusions. Article 2(d), article 2(e) and article 2(f) limit the sphere of application by excluding the sale of specific items (stocks, shares, investment securities, negotiable instruments, or money, ships, vessels, hovercraft, aircraft and electricity). Article 3(1) indicates that the goods do not have to be "ready-made" for their sale to be governed by the CISG; the international sale of made-to-order goods can also fall within the sphere of application of the CISG.


Exclusion and opting-in of the CISG

Even where all requirements for the applicability of the CISG are met, the CISG does not necessarily have to apply. By stating that 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", article 6 allows the parties to opt-out of the CISG or portions of it (see footnote 42). The exclusion can be express or implied (see footnote 43), total or partial. To exclude the Convention ex article 6, there must be an agreement between the parties (see footnote 44). Article 8 identifies interpretive criteria to be taken into account to determine whether there is such an agreement. Article 9 lays down rules on trade usages and course of dealing, which must also be taken into account to determine whether the parties intended to exclude the CISG.

Although not expressly provided for by the CISG, unlike ULIS (see footnote 45), the application of the CISG in cases not governed per se by it can be agreed upon by the parties. In such cases, the mandatory provisions of the lex contractus will, however, prevail over provisions of the CISG since, by opting-in, CISG provisions become part of the contract not unlike any other contractual clause (see footnote 46).


FOOTNOTES

* Professor of Comparative Private Law, Katholieke Universiteit Brabant at Tilburg, the Netherlands; J.D. (Honors), Bologna University, Italy; LL.M., Augsburg University, Germany.

1. For a discussion of the "international sphere of application" of the CISG, see, e.g., Kurt Siehr, Der internationale Anwendungsbereich des UN-Kaufrechts, 52 RabelsZ 587-616 (1988).

2. For a contract to be considered international, the Hague Sales and Formation Conventions require that a subjective criterion, and an objective criterion be satisfied.

3. Although not recited in article 1, the world "relevant" should be read into its references to the places of business of the parties. This addition to the text of article 1 is derived from article 10. There are two parts to this provision: article 10(a) deals with the situation in which a party has more than one place of business; article 10(b) states that "if a party does not have a place of business, reference is to be made to his habitual residence."

4. The Hague Conventions do not rule on situations presented where a party has multiple places of business. For a discussion of the solutions proposed under these conventions, see Gerold Herrmann, Anwendbarkeit des Einheits-kaufrechts auf Kaufvertrag mit Zweigniederlassung (art. 1 Abs. 1 EKG), 3 Praxis des Internationalen Privat- und Verfahrensrechts 212-215 (1983); Daniela Memmo, La "sede d'affari" secondo la disciplina uniforme sulla vendita internazionale nella più recente giurisprudenza della Corte federale tedesca, 27 Rivista Trimestrale di Diritto e Procedura Civile II 755-761 (1983).

5. The determination of the relevant place of business is also important for the purposes of the following articles: 12, 20(a), 24, 31(c), 42(1)(b), 57(1)(a), 57(2), 69(2), 90, 93(3), 94(1), 94(2), 96.

6. The Secretariat Commentary states: "The phrase `the contract and its performance' refers to the transaction as a whole, including factors relating to the offer and the acceptance as well as the performance of the contract. The location of the head office or principal place of business is irrelevant for purposes of [article 10(a)] unless that office or place of business becomes so involved in the transaction concerned as to be the place of business which has the `closest relationship to the contract and its performance'" (Official Records, 19). For further comments on the "closest relationship" rule, see the editorial analysis of article 10.

7. In practice, where the buyer does not know that the performance occurs at a place of business other than that where the contract is concluded, the latter place of business will likely be the relevant place of business. Where, however, the buyer knows that the performance is effected at a place of business different from that of the conclusion of the contract, the wording of article 10(a) suggests that the former is the relevant place of business. For a discussion of this issue leading to these conclusions, see Franco Ferrari, The Sphere of Application of the Vienna Sales Convention 11 (Cambridge, 1995).

8. See Paul Volken, The Vienna Convention: Scope, Interpretation and Gap-Filling, in International Sale of Goods. Dubrovnik Lectures 19, 24 (Paul Volken and Petar Sarcevic eds., New York/London/Rome, 1986). The burden of proof should be carried by the party invoking the impossibility of recognizing the internationality of the contract, i.e., by the party which invokes the inapplicability of the CISG. For this conclusion, see, among others, Rolf Herber & Beate Czerwenka, Internationales Kaufrecht 21 (Munich, 1991). For further comments on burden of proof in general, see note 35, infra.

9. For this conclusion see also John Honnold, Uniform Law for International Sales 79 and 181 (Deventer/Boston, 2d ed., 1991).

10. For this definition, see, among others, Peter Schlechtriem, Uniform Sales Law 42 (Vienna, 1986).

11. See, for this "autonomous-power" requirement, Gert Reinhart, UN-Kaufrecht 38 (Heidelberg, 1991).

12. A basis for controversy associated with the "autonomous-power" requirement can be the fact that a proposal to specifically define a place of business as "a place where the party maintains a business organization having power to negotiate or conclude contracts of sale or purchase in the name of the party" was considered by the delegates to the Vienna Diplomatic Conference and not adopted (Official Records, 169, 203-205).

13. There are various court decisions relying on article 100 CISG in order to decide against the CISG's applicability; see, for instance, Rechtbank Arnhem, May 27, 1993, published in 12 Nederlands Internationaal Privaatrecht 327 f. (1994) (relying upon art. 100(1) to rightly exclude the CISG's applicability to a contract concluded in 1990 between a Dutch seller and a German buyer, since at that time, neither the Netherlands nor Germany was a Contracting State); Rechtbank Arnhem, October 22, 1992, published in 11 Nederlands Internationaal Privaatrecht 185 f. (1993) (justifying the decision to not apply the CISG to an international sales contract concluded in 1991 between an English seller and an Dutch buyer by referring to art. 100); Cass. civ., October 24, 1988, published in Giustizia Civile 1889 f. (1989).

14. For papers specifically dealing with the indirect (or conflicts-of-law) application of the CISG, see, among others, Isaak I. Dore, Choice of Law under the International Convention: A U.S. Perspective, 77 American Journal of International Law 521-540 (1983); Hermann Pünder, Das Einheitliche UN-Kaufrecht - Anwendung kraft kollisionsrechtlicher Verweisung nach Art. 1 Abs. 1 lit. b UN-Kaufrecht, Recht der Internationalen Wirtschaft 869-873 (1990); Peter Winship, Private International Law and the U.N. Sales Convention, 21 Cornell International Law Journal 487-533 (1988).

15. The article 1(1)(b) extension of the Convention's sphere of application has been welcomed by many legal scholars; see, e.g., Beate Czerwenka, Rechtsanwendungsprobleme im internationalen Kaufrecht 162 (Berlin/Munich, 1988). For applications of the CISG in the courts of a Contracting State by virtue of article 1(1)(b), see, for instance, OLG München, March 2, 1994, published in Neue Juristische Wochenschrift Rechtsprechungs-Report 1075 f. (1994); OLG Düsseldorf, February 10, 1994, published in Recht der internationalen Wirtschaft 53 f. (1995); KG Berlin, January 24, 1994, published in Recht der internationalen Wirtschaft 683 f. (1994); OLG Köln, October 16, 1992, published in Recht der internationalen Wirtschaft 143 f. (1993); OLG Frankfurt, September 17, 1991, published in Recht der internationalen Wirtschaft 950 f. (1991). For such applications in the courts of non-Contracting States, see, for instance, LG München, July 3, 1989, published in Praxis des internationalen Privat- Und Verfahrensrechts 316 f. (1990); LG Stuttgart, August 31, 1989, published in Recht der internationalen Wirtschaft 984 f. (1989); LG Aachen, April 3, 1990, published in Recht der internationalen Wirtschaft 491 f. (1990); AG Oldenburg, April 24, 1990, published in Praxis des internationalen Privat- Und Verfahrensrechts 336 f. (1991); LG Hamburg, September 26, 1990, published in Europäische Zeitschrift für Wirtschaftrecht 181 f. (1991); AG Frankfurt, January 31, 1991, published in Praxis des internationalen Privat- Und Verfahrensrechts 345 f. (1991); Rechtbank Amsterdam, October 5, 1994, published in Nederlands Internationaal Privaatrecht 195 f. (1995); Rechtbank Amsterdam, December 7, 1994, published in Nederlands Internationaal Privaatrecht 196 f. (1995).

16. Article 95 allows Contracting States to make a declaration by virtue of which they "will not be bound by subparagraph (1)(b) of article 1. As of December 1995, forty-five Contracting States have subscribed to the CISG; five Contracting States have declared that they will not be bound by article 1(1)(b): China, Czech Republic, Singapore, Slovakia, and the United States.

17. Secretariat Commentary on subparagraphs (1)(a) and (1)(b) of the 1978 Draft of the CISG. Official Records, paras. 6 and 7, p. 15. The text of the 1978 Draft article 1(1)(a) and 1(1)(b) commented on by the UNCITRAL Secretariat is identical to the text of the CISG.

18. Emphasis is placed on that Contracting State to underscore the fact that Rule Three only applies to the situation in which the forum is in a Contracting State that is not bound to apply article 1(1)(b) and its rules of private international law invoke the law of that forum.

19. The "gateway" criteria must be satisfied (see Rule Two). Also, Rule Four (alternative (a)) does not apply where the forum is in a Contracting State that is not bound to apply article 1(1)(b) and its rules of private international law invoke the law of that forum (Rule Three).

20. Emphasis is placed on any Contracting State to underscore the fact that it can be either a Contracting State that is bound to apply article 1(1)(b), or a Contracting State that is not bound to apply article 1(1)(b).

21. See the chart of permutations and combinations of article 1(1)(a) and 1 (1)(b) presented at: Peter Winship, The Scope of the Vienna Convention on International Sales Contracts, International Sales: The United Nations Convention for the International Sale of Goods, page 1-53 (Nina M. Galston & Hans Smit eds., 1984).

22. Subject to Rules Two and Three, Rule Four (alternative (a)) applies to each of the following situations: The forum is located in a Contracting State that is bound by article 1(1)(b). The application of the CISG to this situation results clearly from the text of article 1(1)(b). The forum is located in a Contracting State that is not bound by article 1(1)(b). The application of the CISG to this situation results from the application of the rules of private international law of the Contracting State that is not bound by article 1(1)(b). See, for instance, Michel Pelichet, La vente internationale de marchandises et le conflit de lois, Recueil des Cours 9, 43-44 (1987). The forum is located in a non-Contracting State whose rules of private international law lead to the law of a Contracting State. In this situation, the CISG will be applicable as part of the substantive law designated by the aforementioned rules of private international law. See for this solution, Peter Kindler, Die Anwendungvoraussetzungen des Wiener Kaufrechtsübereinkommens der Vereinten Nationen im deutsch-italienishen Rechtsverkehr, Recht der internationalen Wirtschaft 776, 778 (1988); Siehr, supra note 1 at 610.

23. For this solution, see, for instance, Isaak I. Dore, Choice of Law under the International Sales Convention: A U.S. Perspective, 77 American Journal of International Law 521, 537 (1983); Bradley J. Richards, Note, Contracts for the International Sale of Goods: Applicability of the United Nations Convention, 69 Iowa Law Review 209, 222 (1983).

24. In its instrument of ratification, Germany interpreted the text of the CISG as follows: "The Government of the Federal Republic of Germany holds the view that Parties to the Convention that have made a declaration under article 95 of the Convention are not considered Contracting States within the meaning of subparagraph (1)(b) of article 1 of the Convention. Accordingly, there is no obligation to apply -- and the Federal Republic of Germany assumes no obligation to apply -- this provision when the rules of private international lead to the application of the law of a Party that has made a declaration to the effect that it will not be bound by subparagraph (1)(b) of article 1 of the Convention. . . . "(UN Depositary Notification C.N.365.1989, Treaties-3, dated 16 March 1990). Similar language is recited in article 2 of the Federal Republic's law with respect to adherence to the Convention (BGBI.II S.586).

25. See Albert H. Kritzer, Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods 69 (Deventer/Boston, 1989).

26. For this same definition, see Herber & Czerwenka, supra note 8 at 16; Burghard Piltz, Internationales Kaufrecht 23 (Munich, 1993).

27. See Ulrich Magnus, Wiener UN-Kaufrecht 30 (Berlin, 1994).

28. See Rolf Herber, Anwendungsvoraussetzungen und Anwendungsbereich des Einheitlichen Kaufrechts,, in Einheitliches Kaufrecht und Nationales Obligationenrecht 97, 103 (Peter Schlechtriem ed., Baden-Baden, 1987).

29. For this conclusion, see also Roland Löewe, Internationales Kaufrecht 27 (Vienna, 1989).

30. For a commentary on questions associated with barter and differences between it and other types of countertrade, see Dietrich Maskow, Bianca-Bonell Commentary (Milan, 1987) 386-387.

31. For a discussion of this general subject, see Arthur Fakes, "The Application of the United Nations Convention on Contracts for the International Sale of Goods to Computer, Software, and Database Transactions", 3 Software L.J. 584-585 (1990).

32. See Rechtbank Arnem, 25 February 1993, published in Nederlands Internationaal Privaatrecht 686-689 1993). This case involved disputes under a frame contract (similar to a distributorship agreement) and under contracts for goods ordered and delivered under that frame contract. The former disputes were held to be governed by the applicable domestic law; the latter disputes were held to fall within the scope of the CISG. See also Gerechtshof Amsterdam, 16 July 1992, published in Nederlands Internationaal Privaatrecht 711-717 (1992).

33. See Giorgio De Nova, L'ambito di applicazione "ratione materiae" della convenzione di Vienna, Rivista Trimestrale di Diritto e Procedura Civile 749, 751 (1990).

34. See Fritz Enderlein & Dietrich Maskow, International Sales Law (New York, 1992), 33; Ferrari, Vendita Internazionale di beni mobili. Ambito di applicazione. Disposizioni Generali (Bologna, 1994) 61.

35. For this solution, see Peter Schlechtriem, Einheitliches UN-Kaufrecht 13 (Tübingen, 1981). Some authors assert that the Convention does not deal with procedural questions; consequently, such matters should be left to domestic procedural law. The better view is that the allocation of burden of proof is governed by the CISG, at least in some cases. For a more complete discussion of this subject, see Franco Ferrari, Specific Topics of the CISG in the Light of Judicial Applications and Scholarly Writing, 10 Preadviezen uitgebracht voor de Vereniging voor Burgerlijk Recht 81, 136 (1995).

36. For a discussion of Article 5, see, e.g., Rolf Herber, UN-Kaufrechtsübereinkommen: Produkthaftung - Verjährung, Monatsschrift für Deutsches Recht 105 f. (1993); Dirk Otto, Produkthaftung nach dem UN-Kaufrecht, Monatsschrift für Deutsches Recht 533 (1992); Dirk Otto, Nochmals: UN-Kaufrecht und EG-Produkthaftungsrichtlinie, Monatsschrift für Deutsches Recht 306 (1993); Peter Schlechtriem, The Borderland of Tort and Contract - Opening a New Frontier?, 21 Cornell Int'l L.J., 467 ff. (1988).

37. For this conclusion, see, for instance, Kritzer, supra note 25 at 95; Magnus, supra note 27, at 93-94.

38. See, e.g., Enderlein et al., Internationales Kaufrecht 42 (Berlin, 1991); Rolf Herber, Art. 1, in Kommentar zum Einheitlichen UN-Kaufrecht 46, 50 (Peter Schlechtriem ed., 2nd ed., Munich, 1995).

39. See Honnold, supra note 9 at 101.

40. Id. at 100.

41. See Peter Schlechtriem, Uniform Sales Law -- The Experience with Uniform Sales Laws in the Federal Republic of Germany, in "Sartryck", Juridisk Tidskrift vid Stockholms Universitet, Argang 3/NR 1/1991-1992, 7-8.

42. See Claude Witz, L'exclusion de la Convention des Nations Unies sur les contrats de vente internationale de marchandises par la volonté des parties (Convention de Vienne du 11 avril, 1980), Receuil Dalloz-Sirey 107, (1990).

43. The possibility of excluding the CISG implicitly has been recognized by many scholars; see, e.g., Alejandro Garro & Alberto Zuppi, Compraventa Internacional de Mercaderias (Buenos Aires, 1990) 98; Herber & Czerwenka, supra note 8, at 42; Barry Nicholas, The Vienna Convention on International Sales Law, 105 L.Q.R. 201, 208 (1989).

44. Honnold states that "an agreement to exclude the Convention . . . may only be implied from facts pointing to real -- as opposed to theoretical or fictitious -- agreement". See Honnold, supra note 9 at 128.

45. See ULIS article 4.

46. See Ferrari, supra note 7 at 38; Kritzer, supra note 25, at 103.


Pace Law School Institute of International Commercial Law - December 1996