Reproduced with permission from the author and 15 Journal of Law and Commerce (1995) 1-126
Franco Ferrari [*]
(. . .)Exclusions from the Convention's Sphere of Application by Virtue of Article 2
For the applicability of the United Nations Sales Convention it is not sufficient that all the above mentioned prerequisites set down in Articles 1 and 3 of the CISG exist. [451] The Convention's sphere of application, as it results from these Articles, is restricted by several provisions, among others, by Article 2 of the CISG. [452]
The importance of Article 2 CISG results from its excluding certain categories of international sales contracts from the CISG's sphere of application. [453] These exclusions, which are analogous, but not identical to the ones contemplated by the ULIS, [454] can be divided into three categories [455] (and not into two, as it has been argued) [456] depending on the reasons for the exclusions from the CISG's field of application. The exclusions are based either on the purpose of the acquisition of the goods (Article 2(a)), or on the type of sales contract (Article 2(b) and (c)), or on the kind of goods sold (Article 2(d), (e) and (f)). [457]
Even though there is dispute among legal scholars as to the number of categories of sales contracts excluded from the sphere of application of the CISG, most legal scholars agree upon the importance of the restrictions contained in Article 2. [458] Indeed, it is commonly understood that the exclusions of Article 2 are further reaching than those contained in the ULIS. [459] This is evidenced, for example, by the exclusion of auction sales from the sphere of application of the 1980 Uniform Sales Law, [460] an exclusion not contained in the ULIS. [461] According to the Official Records of the United Nations Conference, this was due to the draftsmen's intent to avoid a conflict between CISG rules and special rules to which auction sales are often subject under national law. [462]
In addition to this type of sale, Article 2 of the CISG also excludes the sale of goods bought for personal use from the Sales Convention's sphere of application. [463] Even though it has been argued that this exclusion has no antecedent in the 1964 Hague Conventions, [464] its rationale inspired the Article 5(2) ULIS exclusion, [465] although the latter has a more restrictive scope of application. [466]
This exclusion, [467] which, despite the proclaimed irrelevance of the civil or commercial nature of the contract [468] leads de facto to a limitation of the CISG's sphere of application to commercial contracts, [469] has been justified, on the one hand, on the ground that the CISG should not be applicable to contracts having only local relevance, [470] and on the other hand, on the ground that there are only a few cases where the consumer contract is international. [471] However, a more convincing justification for the exclusion of sales of goods bought for personal use, i.e., for the exclusion of consumer contracts, [472] seems to be the intent of the draftsmen to avoid a conflict between CISG rules and domestic laws aimed at consumer protection. [473]
Having recognized that the Article 2(a) exclusion "intends to ensure that the domestic consumer-protection laws are not affected by the Uniform Law for International Sales," [474] we must now focus on the prerequisites an international sales contract must meet in order to be excluded by virtue of Article 2(a) from the CISG's sphere of application. The criterion by which sales contracts are excluded ex Article 2(a) from the Convention's sphere of application is represented by the purpose for which the goods are bought: [475] the goods must be bought for a non commercial purpose, [476] i.e., for "personal" use. [477] However, this does not necessarily mean that the contract must be concluded for either commercial or industrial purposes [478] in order to be governed by the Vienna Sales Convention. Indeed, the CISG also applies where the goods are bought for professional use; [479] consequently, where a professional photographer buys a camera to use it in his business, the application of the Uniform Sales Law is not excluded. [480] The same is true where a lawyer buys an office machine in order to use it in his law firm. [481]
In order to determine whether a sales contract falls within the Article 2(a) exclusion, only the purpose at the time of purchase is relevant, [482] that is, it is irrelevant that the real use the buyer makes of the good is different than the intended one. [483] Consequently, the Sales Convention will not apply where the goods are bought for an intended personal use, [484] even though the buyer later changes his mind and uses them for commercial purposes. [485] For the determination of the applicability of the Article 2(a) exclusion it is also relevant to determine whether the intended personal use is an exclusive one or not: [486] where the goods are bought exclusively for personal use, the CISG is not applicable, [487] while, conversely, it is applicable where the purpose is not an exclusively personal one, [488] even though the personal use might be the primary purpose of the purchase. [489]
The problem of determining whether a specific sale falls within the Article 2(a) exclusion (and therefore is not governed by the Vienna Sales Convention) is accentuated by Article 2(a) requiring for the inapplicability of the Convention that the (non commercial) purpose of the purchase be known [490] (or could have been known) [491] to the seller at the time of the conclusion of the contract. [492] Consequently, it is irrelevant whether the seller knows of the non commercial purpose of the purchase after the conclusion of the contract. [493] The rationale for this exclusion is the need for certainty of law: the seller has to know whether the Uniform Sales Law or his domestic sales law is applicable. [494]
One of the interesting problems concerning this "prerequisite" relates to its burden of proof. [495] Indeed, there has been (and still is) dispute among legal scholars as to its allocation. Some authors assert that the Convention does not deal with any procedural questions [496] and, consequently, that this question should be left to domestic procedural law. [497] The better view seems to be to the contrary, [498] that is, the allocation of the burden of proof is governed by the Uniform Sales Law, at least in some cases. [499]
In respect of the issue de quo, the burden of proof is not always placed on the seller, as has been suggested. [500] Since the buyer, as well, might be interested in the CISG's application, [501] the best solution is to adopt a more flexible rule, according to which the burden of proving the seller's impossibility of knowing (or being able to know) the buyer's purpose is placed on the party claiming the applicability of the Vienna Sales Convention. [502]
In addition to the question of the burden of proof, many authors have also dealt with the issue as to the criteria to be used in deciding whether the "personal use" purpose is recognizable. [503] In this regard, various indicia have been identified from which to infer the non commercial purpose of a sales contract [504] and, therefore, the inapplicability of the Sales Convention. [505] It has been stated, [506] for example, that the goods' destination to a non commercial use can be inferred from their being generally destined to personal use, [507] as in the case of the purchase of clothing [508] or food. [509] On the other hand, the purchase of several pieces of the same type of goods, even where they are generally destined for personal use, might lead to the opposite presumption, [510] that is, that they are bought for something other than a personal use. [511]
There are other indicia that do not relate to the nature of the goods, but to the "buyer." [512] Where, for instance, the buyer concludes a contract acting as an agent for an enterprise or providing an enterprise's address, then his intent to eventually use the goods for non commercial purposes does not seem to be recognizable. [513] The same is true where the buyer concludes a sales contract using an enterprise's letter head, or where he uses an enterprise's office during the bargaining process. [514]
However, Article 2(a) CISG provides that the international sale of goods need not necessarily occur for personal use [515] in order to be excluded from the CISG's scope of application. [516] Indeed, Article 2(a) compares family and household use to personal use. [517] However, it is doubtful whether the express contemplation of "family and household use" adds anything to the sphere of application of the exclusion of the sale of goods bought for personal use, since the former exclusions merely represent examples of "personal uses.'' [518] However, those who argue that "family or household use" have a meaning different and independent from "personal use," must not define these terms (family and household) by resorting to domestic law, [519] but by resorting to an interpretation which has regard to the Convention's international character and to the promotion of uniformity in its application. [520] This is why it has also been suggested that these concepts be interpreted with a sociological basis, [521] rather than with a legal one. [522] Thus, the purchase of goods for a god-child [523] or a cohabiting partner [524] will fall within the Article 2(a) exclusion.
As already pointed out, [525] the Article 2 exclusions are not only based on the purpose behind the acquisition of the goods [526] or on the type of sales contract (such as the auction sales [527] or the sales on execution or otherwise by authority of law mentioned in Article 2(c) [528]), but also on the kind of goods sold (Article 2(d), (e) and (f)). [529]
Article 2(d), not unlike Article 5(1)(a) of the ULIS [530] as well as older Draft Conventions, [531] excludes the sales of stocks, shares, investment securities, negotiable instruments, and money from the Convention's sphere of application [532] in order to avoid a conflict between CISG rules and domestic rules which are often compulsory. [533] The view which held that the exclusion was necessary to avoid differences in the Convention's application which could arise from the excluded commercial papers not being considered "goods" in some legal systems, [534] is not tenable, since the Convention could have easily adopted a different concept of "goods" which could have included commercial papers as well. [535]
The commercial paper referred to in Article 2(d) (which some authors consider to be a superfluous provision, because the concept of "goods," which can be deduced from the Convention, is sufficient to exclude the commercial papers listed in the provision de quo) [536] includes bills of exchange, cheques, [537] as well as other "instruments calling for the payment of money." [538] The sales of documents controlling the delivery of goods, such as warehouse receipts and bills of lading, [539] are, on the contrary, governed by the CISG rules, [540] for the real subject of those sales are the goods, rather than the documents. [541]
Article 2(d) expressly excludes the sale of money from the sphere of application of the Vienna Sales Convention. [542] If it is true, as has been suggested, [543] that in the sense of the Vienna Sales Convention "money" means "money which is legal tender in a country," [544] then there is no reason why the CISG should not apply to the sale of money which is no longer in use. Consequently, the purchase of vintage coins from the last century by a store owner made with the intention of reselling them should be subject to the Uniform Sales Law. [545] And the same appears to be true with reference to the aforementioned negotiable instruments: if a museum, for example, intends to buy a number of shares which only have historical or artistical value, there is no reason why this sale should not be governed by the CISG.
The exclusions of the sale of ships, vessels, hovercraft and aircraft fall within the same category as the exclusion of commercial paper and money, [546] that is, sales excluded on the basis of the nature of the goods sold. [547] These exclusions, [548] which according to the Official Records of the United Nations Conference are due to the existence, in some legal systems, of rules according to which the excluded "goods" are treated as immovables, [549] have, at least partially, been provided for by the ULIS. [550] Indeed, Article 5(1)(b) of the ULIS [551] excluded the sale of ships, vessels and aircraft from the sphere of application of the 1964 Uniform Sales Law. [552] However, it did not mention the sale of hovercraft. [553] The CISG's innovation (which goes back to a proposal of the Indian delegation at the Vienna Conference [554]) has been introduced in order to make sure that the regime of the ships and vessels apply to hovercraft as well, [555] independently from whether hovercraft are to be considered ships, vessels or aircraft. [556]
The sphere of application of the CISG's Article 2(e) exclusion is broader than the ULIS' Article 5(1)(b) exclusion for another reason, as well. [557] Whereas the ULIS merely excluded the ships, vessels and aircrafts which were subject to registration by virtue of national law, [558] the CISG, by canceling this criterion for exclusion, broadened the sphere of application of the exclusion of the sale of the foregoing "goods." [559]
The cancellation of the registration requirement has some advantages. It avoids, for instance, the examination of the difficult question as to what which ships, vessels or aircrafts are subject to the registration requirement and, therefore, fall within the scope of the exclusion. [560] However, it raises the question as to whether sales of smaller boats fall within the scope of the Article 2(e) exclusion. [561] The view, held by several authors, [562] according to which the concept of "ship" (or "vessel") is limited to larger ships (or vessels) only, does not seem to be grounded in the text of the Vienna Sales Convention. [563] The better view is that the size of a watercraft is not a relevant criterion for the exclusion of a sale from the sphere of application of the Convention. [564] But this does not mean that all purchases of small watercraft are excluded from the CISG's sphere of application. [565] It only means that the exclusion from the Article 2(e) exception must be based upon a criterion different from the size of the watercraft, such as the functional characteristics of the watercraft. [566] Consequently, the sale of a watercraft which does not have the function ships or vessels have, i.e., the sale of a watercraft which is not permanently destined for the transport of goods or persons, does not fall within the exclusion de quo (independently from its size). [567] This is why the sale of a row boat [568] or sailing boat [569] should be governed by the Convention. [570] Indeed, these watercraft must be considered sporting goods [571] rather than means of transport. [572]
This problem is not the only one leading to doctrinal dispute. There is also disagreement among scholars as to whether the sale of components of the goods excluded by Article 2(e) is subject to the exclusion. Some authors argue that such a sale falls within the sphere of the exclusion, at least where the components are essential elements of the good excluded ex Article 2(e). [573] Although this view is held by a learned author, [574] the better view is to the contrary, [575] as evidenced by a Hungarian Supreme Court decision [United Technologies (Pratt & Whitney) v. Malev Hungarian Airlines, Legfalsobb Biróság 25 September 1992] [576] applying the Vienna Sales Convention to a sales contract concerning aircraft engines, which certainly constitute an "essential element" of the aircraft. [577]
Finally, one has to mention the exclusion from the Convention's sphere of application of sales contracts regarding electricity. [578] According to some authors, the exclusion de quo can be justified on the ground of electricity's "unique" nature [579] or "on the ground that in many legal systems electricity is not considered to be goods." [580] Neither justification appears to be convincing. Indeed, the first one overlooks the fact that there are other goods the sale of which can create "unique" problems, [581] such as the sale of gas [582] and crude oil [583] which, on the contrary, are governed by the Sales Convention. [584] The second one is not convincing, "because the Convention may create its own definition of goods." [585] Indeed, the exclusion of electricity sales from the sphere of application of the Vienna Sales Convention cannot be justified.
Go to entire text of Ferrari commentary
* Professor of Comparative Private Law, Katholieke Universiteit Brabant, Tilburg, the Netherlands; J.D. (Honors), University of Bologna, Italy; LL.M., University of Augsburg, Germany. Copyright, Franco Ferrari.
(. . .)
451. For a similar conclusion, see Ferrari, supra note 159, at 56.
452. It is commonly understood that Article 2 of the CISG restricts the sphere of application of the 1980 Uniform Sales Law resulting from Articles 1 and 3. For a similar statement, see, e.g., Boschiero, supra note 117, at 276; Sergio M. Carbone & Marco Lopez de Gonzalo, Art. 2, NUOVE LEGGI CIVILI COMMENTATE 6, 7 (1989); Magnus, supra note 156, at 55; Schlechtriem, supra note 92, at 28.
453. See Article 2 CISG:
"This Convention does not apply to sales:
(a) 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;(b) by auction;
(c) on execution or otherwise by authority of law;
(d) of stocks, shares, investment securities, negotiable instruments or money;
(e) of ships, vessels, hovercraft or aircraft;
(f) of electricity."
454. See Article 5 ULIS:
"(1) The present Law shall not apply to sales:
(a) of stocks, shares, investment securities, negotiable instruments or money;(b) of any ship, vessel or aircraft, which is or will be subject to registration;
(c) of electricity;
(d) by authority of law or on execution or distress."
(2) The present Law shall not affect the application of any mandatory provision of national law for the protection of a party to a contract which contemplates the purchase of goods by that party by payment of the price by instalments.
455. For this tripartite, see Enderlein et al., supra note 48, at 45; Karollus, supra note 226, at 380; Samson, supra note 323, at 928.
456. For the bipartition, see, e.g., Carbone & Lopez de Gonzalo, supra note 452, at 7 (basing the exclusions on the characteristics of the contractual relationship created by the parties and on the nature of the goods sold); Honnold, supra note 25, at 96 (categorizing the exclusions on the basis of the nature of the transactions and of the nature of the goods).
457. For a similar tripartite, see also Enderlein & Maskow, supra note 58, at 32 (stating that "[t]here are three types of restrictions in this article [Article 2]; -- those based on the purpose for which the goods were purchased (subpara. (a)), -- those based on the type of sales contract (subparas. (b) and (c)), -- those based on the kinds of goods sold (subparas. (d), (e) and (f))"); Warren Khoo, Art. 2, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 34 at 37 (stating the same); OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating the same); Volken, supra note 90, at 34 (stating the same).
458. Note, however, that Magnus, supra note 156, at 56, points out that the exclusions contained in Article 2 are not based upon a specific concept. The exclusions appear, above all, to be arbitrary.
459. See, for a similar affirmation, Rolf Herber, Art. 2, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT, supra note 48, 59 at 59.
460. Even though auction sales are not subject to the Vienna Sales Convention, this does not mean that sales at commodity exchanges are excluded from the CISG's sphere of application (for this conclusion, see Heuzé, supra note 177, at 76). Indeed, the sales at commodity exchanges being "rather rapidfire communication of offers and acceptances" (Honnold, supra note 25, at 98 note 3), they cannot be considered auction sales. For a similar argument, see Mark Kantor, The Convention on Contracts for the International Sales of Goods: An International Sales Law, INT'L L. PRACTICUM 10 (N.Y.S. Bar Association, Autumn 1988) (stating that "sale on commodity exchanges are not sales by 'auction' but rather extremely quick communications of offers and acceptance. Therefore, so long as a commodities trading contract is between companies with places of business in different Contracting States and the transaction is not otherwise excluded from coverage under the Convention, the Convention is applicable to international sale of goods consummated on such . . . exchanges . . .").
For a similar conclusion, see Audit, supra note 38, at 29; Ferrari, supra note 159, at 57 n.7 (stating that the CISG can be applicable to commodity exchange transactions).
461. It has often been stated that the exclusion of auction sales constitutes one of the innovative characteristics of the Vienna Sales Convention; see, e.g., Khoo, supra note 457, at 36 (stating that "[p]aragraph (b) excepting 'auction[s]' has no precedent in ULIS. It was introduced by the Working Group in 1970. . . . There is a similar provision in the 1974 Limitation Convention"), see also Carbone & Lopez de Gonzalo, supra note 452, at 7 (stating the same); Magnus, supra note 156, at 55.
462. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating that "[s]ubparagraph (b) of this article [Article 2] excludes sales by auction from the scope of the Convention. Sales by auction are often subject to special rules under the applicable national law and it was considered desirable that they remain subject to those rules even though the successful bidder was from a different State."
Note, however, that some authors have justified the exclusion de quo differently; see, e.g., Enderlein & Maskow, supra note 58, at 34-35 (stating that the exclusion of sales by auction is due rather to the intent to avoid a conflict between CISG rules and party autonomy: "the rules for auctions are mostly created by the very institutions which had such auctions; and the participants in the auction are obliged to accept those conditions"). For a similar justification of the Article 2(b) exclusion, see Reczei, supra note 353, at 70.
463. See Magnus, supra note 156, at 56-61.
464. For a similar statement, see, e.g., Carbone & Lopez de Gonzalo, supra note 452, at 7 (stating that the Article 2(a) exclusion "has no antecedent in the 1964 Hague Conventions"); Boschiero, supra note 117, at 276 (stating the same); Czerwenka, supra note 194, at 148; Reinhart, supra note 139, at 18 (stating the same).
465. For a similar affirmation, see Memmo, supra note 6, at 196, stating that "the consideration of this question has already emerged during the drafting of the uniform laws of the Hague of 1964 and has been incorporated in Article 5(2) of the ULIS."
See also Schlechtriem, supra note 92, at 28, stating that "the exclusion intends to ensure that domestic consumer-protection laws are not affected by the Uniform Law for International Sales; Article 2(a) thereby fulfills the same function as article 5(2) of ULIS."
466. For this conclusion, see Herber & Czerwenka, supra note 43, at 23, stating that the scope of the exclusion of Article 5(2) of the ULIS is more restricted than the one contained in Article 2(a) of the CISG.
467. The importance of this exclusion has already been stressed by the commentators on the 1978 Draft of the CISG; see, e.g., Ibrahim Fadlallah, Le projet de convention sur la vente de marchandises, JOURNAL DU DROIT INTERNATIONAL 755, 764 (1979); John O. Honnold, The Draft Convention on Contracts for the International Sale of Goods: An Overview, 27 AM. J. COMP. L. 223, 227 (1979); Ulrich Magnus, Reform des Haager Einheitskaufrecht, ZEITSCHRIFT FÜR RECHTSPOLITIK, 116, 131 (1978).
468. See Article 1(3) CISG quoted supra in note 328.
469. For this conclusion, see Ferrari, supra note 159, at 59; Garro & Zuppi, supra note 389, at 80; Herber, supra note 459, at 61; Reinhart, supra note 139, at 18; Wang, supra note 131, at 186.
470. For this argument, see Herber, supra note 459, at 60; Magnus, supra note 156, at 56; 2 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 56 (1971).
For a criticism of this justification, see Reczei, supra note 353, at 70.
471. For this argument, see, e.g., OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating that "most consumer sales are domestic transactions and it was felt that the Convention should not apply to the relatively few cases where consumer sales were international"); Bernardini, supra note 21, at 87 (stating the same); Michael J. Bonell, La revisione del diritto uniforme della vendita internazionale, GIURISPRUDENZA COMMERCIALE I 116, 123 (1980) (stating the same); Note, United Nations Convention on Contracts for the International Sale of Goods: Creating Uniformity in International Sales Law, 12 FORDHAM INT'L L.J. 727, 746 (1989) (stating the same); Schlechtriem, supra note 187, at 13 (stating the same).
472. It has often been pointed out that the exclusion from the sphere of application of the CISG of the sale of goods bought for the purposes mentioned in Article 2(a) corresponds to the exclusion of consumer sales; for a similar affirmation, see, e.g., Bernardini, supra note 21, at 87; De Nova, supra note 343, at 749; Ferrari, supra note 159, at 60; Garro & Zuppi, supra note 389, at 81-82. This is also evidenced by the fact that the first Draft Conventions (for the history of Article 2(a), see, e.g., Czerwenka, supra note 194, at 148 f.; Khoo, supra note 457, at 34-36) contained a definition of "consumer sale" (for such a definition, see, e.g., 2 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 55 (1971), defining the consumer sale as a sale "of a kind and in quantity ordinarily bought by an individual for personal, family or household use") which in the early 1970's had been abandoned (for this decision, see 6 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 51 (1975)) in favor of the expression "sale of goods bought for personal, family or household use." For a similar affirmation, see also Ferrari, supra note 159, at 60; see also Magnus, supra note 159, at 55.
473. For a similar justification of the Article 2(a) exclusion, see, e.g., Honnold, supra note 25, at 96-97 (stating that "[i]n UNCITRAL attention was drawn to the development of national legislation and case law designed to protect consumers; it was agreed that the Convention should not supersede these rules"); Note, supra note 471, at 746 (stating that "the drafters wanted to ensure that domestic consumer-protection laws were not minimized by the Sale of Goods Convention"); OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (arguing that "[a] rationale for excluding consumer sales from the scope of this Convention is that in a number of countries such transactions are subject to various types of national laws that are designed to protect consumers. In order to avoid any risk of impairing the effectiveness of such national laws, it was considered advisable that consumer sales should be excluded"). See also Magnus, supra note 156, at 56.
474. Schlechtriem, supra note 92, at 28, where the author also points out that there are still some overlapping areas in which the rules of the 1980 Uniform Sales Law as well as domestic rules will apply: "The exception to the exclusion of Article 2(a) -- where the seller cannot recognize the character of the purchase -- can lead to overlapping when domestic consumer protection law does not use such a criterion. Above all, domestic consumer protection laws sometimes intervene when the goods purchased are intended for occupational or even commercial use."
475. For this conclusion, see Ferrari, supra note 159, at 61; Magnus, supra note 156, at 56.
476. It is commonly understood that the criterion by which sales contracts are excluded ex Article 2(a) is represented by the non commercial purpose of the sale of goods; for a similar statement, see, e.g., Enderlein & Maskow, supra note 58, at 33 (stating that "[t]hose contracts are mostly excluded from the Convention's scope of application which in many countries are regarded as civil law contracts (in contrast to trade law contracts). That criterion, however, is not applied with regard to the character of the parties to a contract, which would have to be defined, but rather, to the purpose of the goods"); Memmo, supra note 6, at 194 (stating the same).
477. Various legal scholars have stressed the fact that the commercial nature of the goods is irrelevant; what matters is the commercial purpose of the sale contract; for similar affirmations, see, e.g., Carbone & Lopez de Gonzalo, supra note 452, at 7 (stating the same); Honnold, supra note 25, at 97 (stating that "[t]he character of the goods is not decisive"); Kritzer, supra note 56, at 71 (stating that the Article 2(a) exclusion "is an exclusion of consumer sales; it is not an exclusion of consumer goods"); Magnus, supra note 156, at 56 (making a similar statement).
478. For a similar conclusion, see Herber & Czerwenka, supra note 43, at 380.
479. For this conclusion, see also Herber, supra note 459, at 61; Karollus, supra note 226, at 380; Magnus, supra note 156, at 57; Piltz, supra note 21, at 34; Schlechtriem, supra note 425, at 278.
480. For this example, see also Garro & Zuppi, supra note 389, at 81; Honnold, supra note 25, at 97; Magnus, supra note 156, at 57.
For this and other examples, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating that "the following situations are within the Convention: the purchase of a camera by a professional photographer for use in his business; the purchase of soap or other toiletries by a business for the personal use of the employees; the purchase of a single automobile by a dealer for resale").
481. For this example, see Schlechtriem, supra note 92, at 28.
482. For a similar statement, see, e.g., Honnold, supra note 25, at 97 (stating that "[t]he phrase 'goods bought for personal, family or household use' refers to the purpose of the buyer at the time of the purchase"); Audit, supra note 38, at 28; Carbone & Lopez de Gonzalo, supra note 452, at 7 (stating the same); Herber & Czerwenka, supra note 43, at 24 (stating the same); Karollus, supra note 59, at 25-26.
483. For a similar conclusion, see also Enderlein & Maskow, supra note 58, at 33 (stating that "late changes in purpose are irrelevant"); Ferrari, supra note 159, at 63 (stating the same); Magnus, supra note 156, at 56-57 (stating that it does not impact on the Article 2(a) exclusion, whether the buyer de facto uses the goods for a purpose different than the one he intended to).
484. For this statement, see also Magnus, supra note 156, at 56-57.
485. Conversely, the CISG will apply, even where the buyer uses the goods for non commercial purposes, if, at the time of the conclusion of the contract, he intended to make a commercial use of them.
486. For a short discussion of this question, see Ferrari, supra note 159, at 63-64.
487. For this solution, see also Czerwenka, supra note 194, at 151-152; Herber & Czerwenka, supra note 43, at 24; Karollus, supra note 59, at 26.
488. For this solution, see also Magnus, supra note 156, at 58.
489. For this solution, see, e.g., Ferrari, supra note 159, at 64; Herber, supra note 459, at 61.
490. This might be the case where the seller expressly states that the intended use is a personal one. Consequently, the seller can, by simply stating so, unilaterally exclude the CISG; for this conclusion, see also Loewe, supra note 346, at 27; Magnus, supra note 156, at 58.
491. As far as this criterion is concerned, it has been said that the CISG is excluded solely where the personal use to be made of the goods was unknown to the seller because of his gross negligence (for this view, see, e.g., Herber & Czerwenka, supra note 43, at 24-25). The preferable view is, however, that any kind of negligence is relevant in order to make the Article 2(a) applicable. See, for this view, Schlechtriem, supra note 187, at 13.
492. For this conclusion, see also Enderlein et al., supra note 48, at 34; Khoo, supra note 457, at 37; Magnus, supra note 156, at 58; Memmo, supra note 6, at 197.
493. For a similar statement, see, e.g., Enderlein & Maskow, supra note 48, at 34 (stating that "[i]n regard to whether the seller 'knew' or 'ought to have known', what matters again is the time of the conclusion of the contract. . . . It is not sufficient to gain this knowledge only when, for instance, the machine is being installed"); Herber & Czerwenka, supra note 43, at 25 (stating that the seller has to have knowledge (or the possibility of knowing) of the personal use the buyer wants to make of the goods sold at the moment the contract is concluded). See also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16.
494. For this rationale, see also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16, stating that "[t]he seller might have no reason to know that the goods were purchased for [personal] use. . . . This information must be available to the seller at least by the time of the conclusion of the contract so that he can know whether his rights and obligations in respect to the sale are those under this Convention or those under the applicable national law." For a similar statement, see Khoo, supra note 457, at 36.
495. For a more detailed discussion of this problem, see Ferrari, supra note 159, at 64-65.
496. For a discussion of the issue of the burden of proof under the CISG, see, most recently, Clemens Antweiler, BEWEISLASTVERTEILUNG IM UN-KAUFRECHT (Frankfurt/Berlin/Bern/New York/Paris/Vienna 1995).
497. This view is taken, for instance, by Khoo, supra note 457, at 39, according to whom the same view was favored by the delegates during the Vienna Conference: "[d]elegations speaking on the burden of proof were all quite definite that it was not the intention to deal in the Convention with any questions concerning the burden of proof. The consensus was that such questions must be left to the court as matters of procedural law."
For the statements of several delegates at the Vienna Conference, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 238-239 & 295-298.
498. See, e.g., Czerwenka, supra note 194, at 150; Karollus, supra note 59, at 26.
499. This view is generally based upon the "unless" clause provided for in Article 2(a). For a similar statement, see, e.g., 6 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 51 (1975); OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 238-239.
For a criticism to this view, see Khoo, supra note 457, at 39, stating "this supposed effect of the word 'unless' is not universally accepted, as demonstrated by the discussion on the article defining 'fundamental breach' at the Vienna Conference (now Article 25), an article also containing an 'unless' clause."
500. See, for this suggestion, Honnold, supra note 25, at 97-98, stating that "[t]he structure of Article 2(a) and practical considerations applicable to the allocation of the burden of proof suggest that the buyer has the burden of proving it bought the goods for personal, family or household use; the seller would have the burden of proving that it did not know (and had no means to know) the buyer's purpose." For the same view, see Audit, supra note 38, at 28-29; Carbone & Lopez de Gonzalo, supra note 452, at 7; Karollus, supra note 226, at 380.
501. For this statement, see also Herber, supra note 459, at 62.
502. For this solution, see Schlechtriem, supra note 92, at 28, stating that "[t]he exception for sellers who 'neither know nor ought to have known' that the goods were for private use is deliberately formulated in the negative in order to place the burden of proof firmly on those who claim the exception to the consumer-contracts exclusion and assert that the Convention should apply." (footnote omitted). See also Ferrari, supra note 159, at 65.
503. For this issue, see Herber, supra note 459, at 61-62; Memmo, supra note 6, at 198.
504. Note, that where the contract is concluded by an agent, the non commercial purpose of the purchase must be recognizable to the agent in order to lead to the inapplicability of the Convention.
505. For a discussion of this problem, see Ferrari, supra note 159, at 66.
506. See, for instance, Magnus, supra note 156, at 59.
507. See, e.g., Huber, supra note 270, at 421, stating that the non commercial purpose of the purchase can be deduced from the goods being typically destined to personal use.
508. For this example, see Herber, supra note 459, at 61-62.
509. See Magnus, supra note 156, at 59.
510. Id.
511. For this conclusion, see Ferrari, supra note 159, at 66.
512. See also Herber, supra note 459, at 62.
513. For this solution, see Memmo, supra note 6, at 198.
514. This has already been pointed out by Herber, supra note 459, at 62.
515. The exclusion of "sales of goods bought for personal use" seems to require that the buyer be a person, as opposed to a corporation or enterprise; for a similar conclusion, see Huber, supra note 270, at 422 (stating that "[t]he buyer has to be natural person"); Magnus, supra note 156, at 57; Memmo, supra note 6, at 198 (stating the same).
516. Note that the expression "personal use" does not necessarily signify that the goods must be bought for a use strictly related to the person of the buyer. Consequently, the Article 2(a) exclusion applies, for instance, where the sale is made in order to complete a private collection (for this example, see Herber & Czerwenka, supra note 43, at 24); the same appears to be true as far as concerns the sale of goods which the buyer wants privately to donate to another person (for this example, see Magnus, supra note 156, at 57).
517. See also Magnus, supra note 156, at 57.
518. For this conclusion, see Czerwenka, supra note 194, at 152 (stating that "family and household use" are just examples of "personal use"); Huber, supra note 270, at 422 (stating the same); Memmo, supra note 6, at 196 (stating the same).
519. For this affirmation, see also Ferrari, supra note 159, at 63; Schlechtriem, supra note 187, at 14-15.
520. See Article 7(1) CISG: "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."
521. For this suggestion, see Schlechtriem, supra note 92, at 29, stating that "the purpose of Article 2(a) is to allow a broad description, based on sociological evidence, of those persons who are regarded as included in the family or household." See also Herber, supra note 459, at 61.
522. See Magnus, supra note 156, at 58, stating that the concept of "family" in the sense of Article 2(a) CISG is to be interpreted not in the light of family law, but rather on a sociological basis.
523. Several authors have argued in favor of the inclusion of the god-child within the concept of "family"; see, e.g., Herber, supra note 459, at 61; Schlechtriem, supra note 187, at 15.
524. For this suggestion, see Ferrari, supra note 159, at 63; Herber, supra note 459, at 61.
525. See supra text accompanying note 457.
526. See supra text accompanying notes 463-89.
527. See supra text accompanying notes 460-62.
528. As far as the exclusion of sales on execution or otherwise by authority of law is concerned, it might suffice to point out that this exclusion has its antecedent in the ULIS; for a similar statement, see, e.g., Carbone & Lopez de Gonzalo, supra note 452, at 7; Herber & Czerwenka, supra note 43, at 25.
The justification of the exclusion de quo is represented by the sales on execution and other forced sales being "fundamentally different from other transactions because of the inability of the parties to negotiate the terms of the contract." Honnold, supra note 25, at 98. For this justification of the Article 2(c) exclusion, see also Audit, supra note 38, at 29; Enderlein et al., supra note 48, at 47; Heuzé, supra note 177, at 76.
In addition, the sales on execution's exclusion has been justified on the ground that "such sales are normally governed by special rules in the State under whose authority the execution sale is made. Furthermore, such sales do not constitute a significant part of international trade and may, therefore, safely be regarded as purely domestic transactions." OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16.
529. See Garro & Zuppi, supra note 389, at 79, expressly stating that the exclusion of some sales is based upon the goods sold.
530. For the text of Article 5(1)(a) of the ULIS, see supra note 454.
531. Since the early 1930's, the goods listed in Article 2(d) have been excluded from the sphere of application of the various Draft Conventions; for an early statement concerning the necessity of such exclusion, see, e.g., Rabel, supra note 164, at 55.
532. See Piltz, supra note 21, at 31.
533. For this rationale of the Article 2(d) exclusion, see also Schlechtriem, supra note 92, at 30, stating that the exclusion de quo "takes into consideration that international securities and currency transactions are governed by their own rules and laws which are often compulsory."
See also Enderlein et al., supra note 48, at 47, stating that the Article 2(d) exclusion "can be explained by the existence of mandatory domestic rules."
534. For this view, see, e.g., OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (affirming that "in some legal systems such commercial paper is not considered to be 'goods.' Without the exclusion of the sales of such paper, there might have been significant differences in the application of this Convention"); Khoo, supra note 457, at 38 (stating that the Article 2(d) exclusion "serves the purpose of accommodating the thinking of legal systems which do not regard commercial paper and money as 'goods' and which therefore would find it unacceptable that their sale be brought within the scope of the Convention").
535. For this conclusion, see Ferrari, supra note 159, at 70.
536. For a similar statement, see, e.g., Audit, supra note 38, at 29, stating that "the expression 'marchandises' which has been used . . . in the Vienna Convention would suffice to justify the exclusion of stocks, negotiable instruments and money from the Convention's sphere of application."
Honnold, supra note 25, at 99, goes even further and states that "[t]he exclusion of the intangible rights listed in Article 2(d) illustrates . . . that the sale of 'goods' refers to moveable, corporeal things."
537. For a reference to bills of exchange and cheques as papers excluded from the Convention's sphere of application, see Enderlein & Maskow, supra note 58, at 35; Ferrari, supra note 159, at 71; Magnus, supra note 156, at 63; Reinhart, supra note 139, at 19.
538. Honnold, supra note 25, at 99.
539. For a more detailed list of documents controlling the delivery of goods the sale of which are subject to the CISG, see Herber, supra note 459, at 65.
540. For this conclusion, see also Heuzé, supra note 177, at 37 (stating that documentary sales are not excluded from the CISG's scope of application); Kantor, supra note 460, at 11 (stating that "[t]he reference to 'negotiable instruments' is intended to refer to instruments calling for the payment of money. Instruments such as bills of lading and other documents controlling the delivery of goods, even though characterized as 'negotiable instruments' under Article 3 of the UCC, should be subject to the Convention when employed to effect the delivery of goods"); Karollus, supra note 59, at 21-22 (stating that the sale of documents controlling the delivery of goods is governed by the CISG); Magnus, supra note 156, at 63; OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating that Article 2(d) "does not exclude documentary sales of goods from the scope of [the] Convention, even though, in some legal systems, such sales may be characterized as sales of commercial paper"); Schlechtriem, supra note 92, at 30 (arguing that the "[s]ales contracts which name a document as the subject of the sales, because the document controls the delivery of goods, are considered to be within the sphere of application of the Uniform Law for International Sales").
Under the different Draft Conventions, as well, the sale of documents controlling the delivery of goods was not excluded; see, for a similar statement made with reference to various Draft Conventions, Riese, supra note 19, at 35 note 43.
541. For a similar affirmation, see Enderlein & Maskow, supra note 58, at 35 (stating that "the buyers of such papers are basically the buyers of the goods to which they refer"); Czerwenka, supra note 194, at 152 (stating the same); Ferrari, supra note 159, at 71 (stating the same); Grigera Naon, supra note 147, at 96 (stating the same); Magnus, supra note 156, at 63; Reinhart, supra note 139, at 19 (stating the same).
542. See Piltz, supra note 21, at 31.
543. For this suggestion, see, e.g., Herber, supra note 459, at 65.
544. Ferrari, supra note 159, at 72.
545. This has already been suggested by Ferrari, supra note 159, at 20; Magnus, supra note 156, at 63.
546. See also Heuzé, supra note 177, at 76-77.
547. For a similar affirmation, see Kritzer, supra note 56, at 72.
548. Note that the exclusions de quo were retained although arguments for their elimination came up during the Vienna Conference. For a reference to these arguments, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 240-241 (reporting the delegates' view on the Article 2(e) exclusion); Schlechtriem, supra note 92, at 30.
549. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16: "This subparagraph excludes from the scope of the Convention all sales of ships, vessels and aircraft. In some legal systems . . . some sales of ships, vessels and aircraft are assimilated to sales of immovables." For similar affirmations, see also Garro & Zuppi, supra note 389, at 79; Magnus, supra note 156, at 63; Samson, supra note 323, at 928.
550. Under the ULIS, as well, the argument on the ground of which the sales of ships, vessels and aircraft were excluded from the ULIS' sphere of application was connected with them being similar to the sales of immovables; see, e.g., Kahn, supra note 19, at 694.
551. For the text of Article 5(1)(b), see supra note 454.
552. See, for a comment on Article 5 ULIS, Rolf Herber, Art. 5, in KOMMENTAR ZUM EINHEITLICHEN KAUFRECHT, supra note 166, 25 ff.
553. See Herber, supra note 459, at 67.
554. For this piece of information, see Schlechtriem, supra note 187, at 16. For the discussion which followed the Indian proposal, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 241.
555. For this statement, see also Herber, supra note 459, at 67.
556. According to Khoo, supra note 457, at 38, this is the rationale behind the inclusion of the sales of hovercraft in the list of excluded sales. Indeed, the express exclusion of sales of hovercraft "makes it unnecessary to decide whether hovercraft are ships, vessels or aircraft." For a similar justification of the exclusion de quo, see also Carbone & Lopez de Gonzalo, supra note 452, at 8.
557. See also Magnus, supra note 156, at 63, stating that the Article 2(e) exclusion is broader than that of Article 5(b) ULIS.
558. See Reinhart, supra note 139, at 19.
559. For this conclusion, see also Ferrari, supra note 159, at 73.
560. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16, stating that "in most legal systems at least some ships, vessels and aircraft are subject to special registration requirements. The rules specifying which ones must be registered differ [widely]. In order not to raise questions of interpretation as to which ships, vessels or aircraft were subject to this Convention, especially in view of the fact that the relevant place of registration, and therefore the law which would govern the registration, might not be known at the time of the sale, the sales of all ships, vessels and aircraft was excluded from the application of this Convention."
See also Khoo, supra note 457, at 38, according to which the cancellation of the registration requirement as the criterion for exclusion has the effect that "all vessels, ships, hovercraft and aircraft are excluded, whether or not they are subject to the registration requirement of any national law."
561. For a similar statement, see Schlechtriem, supra note 92, at 30, stating that "[w]ith the elimination of the registration criterion, it has, however, become uncertain whether and to what extent smaller boats -- row boats, canoes, dinghies and yachts -- belong to the subject matter excluded from the application of the Convention."
See also Honnold, supra note 25, at 99, wondering whether "the exclusion of the sales of 'ships, vessels' (Fr.: navires, bateaux; Sp.: buques, embarcaciones) [does] extend to small pleasure craft such as sailboats and row boats."
562. See, e.g., Schlechtriem, supra note 92, at 20, stating that "[t]he function and reason for the exception . . . suggest that the exception should not be extended to boats."
563. For this conclusion, see also Herber, supra note 459, at 66. See, however, Reczei, supra note 353, at 71, who does not exclude that, on the basis of the text of the CISG, the exclusions of the sales of ships and vessels could be restricted to larger ships and vessels only, since "[i]n the English language . . . the terms 'ship' and 'vessel' are used to denote watercraft of larger dimensions. The question is how other languages are capable of expressing the shades and hues distinguishing the one term from the other."
564. For this view, see, e.g., Honnold, supra note 25, at 99 (stating that "UNCITRAL's inability to find a workable basis for the distinguishing between large and small craft and the difficulty that courts would encounter in developing such a distinction suggests that Article 2(e) must be read without qualification: Sales of small pleasure craft do not fall within the Convention").
565. See Magnus, supra note 156, at 64.
566. For this solution, see already Ferrari, supra note 159, at 74.
567. For a similar conclusion, see also Herber, supra note 459, at 66.
568. See Piltz, supra note 21, at 32.
569. See Magnus, supra note 156, at 64.
570. For this conclusion, see also Czerwenka, supra note 194, at 154.
571. For this conclusion, see also Herber, supra note 459, at 66.
572. Note, however, that where the row boat is bought for personal use, it is irrelevant whether it is considered a sporting good or a "ship" or "vessel," being consumer sales excluded from the Sales Convention's sphere of application (Article 2(a)), not unlike sales of ships or vessels (Article 2(e)). Where, however, the row boat is bought by an owner of a shop with the intent to resell it, the Sales Convention should apply.
573. For this view, see, e.g., Herber, supra note 459, at 66, stating that the sale of non-essential parts of a "good" excluded under Article 2(e) should not fall within the exclusion; conversely, the sale of essential parts of those "goods" should not be governed by the Vienna Sales Convention.
574. See the preceding note.
575. In legal writing this view has been expressed, for instance, by Karollus, supra note 59, at 22; Loewe, supra note 346, at 28; Reinhart, supra note 139, at 19.
576. See the decision rendered by the Supreme Court of Hungary, September 25, 1992, published in English in 13 J.L. & COM. 31 (1993). For a comment on this decision, see Paul Amato, U.N. Convention on Contracts for the International Sale of Goods -- The Open Price Term and Uniform Application. An Early Interpretation by the Hungarian Courts, 13 J.L. & COM. 1 (1993); Magnus, supra note 68, at 84-85; Witz, supra note 68, at 36.
577. See also Magnus, supra note 156, at 64.
578. This exclusion has already been contained in Article 5 of the ULIS. See supra note 454.
579. For a similar justification of the exclusion of sales of electricity from the Convention's sphere of application, see, e.g., Heuzé, supra note 177, at 77 (stating that the exclusion of sales of electricity can be explained on the ground of its nature); OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16 (stating that the exclusion of electricity is justified because its sale presents unique problems that are different from those presented by the usual international sale of goods).
580. OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 16. For a similar justification of the Article 2(f) exclusion, see Samson, supra note 323, at 928.
581. For this argument, see also Winship, supra note 122, at 1.25, stating that "any suggestion that the problems raised by the excluded items are 'unique' overlooks other items, such as oil and gas supply contracts or livestock transactions, which also raise unique problems."
582. For this conclusion, see also Honnold, supra note 25, at 101 (arguing that the sale of gas is within the Convention); Huber, supra note 270, at 419 (stating the same and criticizing the exclusion of the sale of electricity).
583. See also Herber, supra note 459, at 67 (stating the same).
For a detailed discussion of the problems of oil trade and the Vienna Sales Convention, see James W. Skelton, CISG and Crude Oil Traders, 9 HOUS. J. INT'L L. 95 (1986).
584. See also Czerwenka, supra note 194, at 155 (stating that sales of gas and petrol are governed by the Vienna Sales Convention); Ferrari, supra note 159, at 76; Herber & Czerwenka, supra note 43, at 27 (stating the same); Magnus, supra note 156, at 65.
585. Enderlein & Maskow, supra note 58, at 35.
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