Reproduced with permission from Revue de droit uniforme/Uniform Law Review (1997) 385-395

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Product liability

Article 5 states that the Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person.

In legal writings it is widely accepted that the Convention governs liability for damage caused by defective goods to other goods, and that such damage should be compensated in conformity with Article 74.[40]

A first decision in this sense has been handed down by a Swiss court in a case relating to the sale and installation of a fitness device (an isolation tank containing water with a high salt concentration) on the buyer's premises. The court pointed out that while death and personal injury are excluded from the scope of the Convention, damage caused by the fitness device to the buyer's premises (leaking salt water) is a matter governed by the Convention.[41]

On the contrary doubts may be expressed concerning a German judgment in a case concerning an accident, which had occurred on account of a defect in the machine component sold, causing the death of a worker as well as some damage to the buyer's machinery. The buyer brought an action against the seller not only to recover the costs it had sustained in repairing the machine, but also to have him held liable in general for all consequences of the accident, including the death of the worker. Nevertheless, the court referred to CISG to ascertain whether it had jurisdiction, without making a distinction between the two claims.[42]

This solution appears subject to criticism since, as correctly observed, Article 5 is worded in such a way as to lead one to understand that "l'action récursoire, susceptible d'être intentée par l'acheteur contre le vendeur à la suite d'une action en responsabilité formée contre le premier par une tierce personne blessée ou par les héritiers d'une victime tuée par le bien doit également échapper à la Convention."[43]

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Go to entire text of Bonell/Liguori commentary

FOOTNOTES

* Professor, Law Faculty, University of Rome 1 "La Sapienza"; Legal Consultant, Unidroit.

** Attorney in Rome; Research fellow, University of Rome 1 "La Sapienza".

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40. Cf. P. Schlechtriem, Uniform Sales Law, cit., 34-35.

41. Handelsgericht Zürich, 26 April 1995, n. HG 920670, in UNILEX 1996.

42. Oberlandesgericht Düsseldorf, 2 July 1993, n.17 U 73193, in Recht der International Wirtschaft (1993) 845. Published in English in A.H. KRITZER, Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods (Deventer), vol. 2, Suppl. 9 (1994).

43. C. Witz, Les premières application jurisprudentielles du droit uniforme de la vente internationale (Convention des Nations Unies du 11 avril 1980) (Paris, 1995) 40.

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999

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