Reproduced with permission from 15 Journal of Law and Commerce (1995) 175-199
excerpts from review of
Les premières applications jurisprudentielles du droit uniforme de la vente internationale
by Claude Witz (L.G.D.J. Paris 1995)
Reviewed by Vivian Grosswald Curran
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Questions Not Governed by the CISG
Section III of the book concerns maters not subject to the CISG. Article 4 specifies that the CISG "is not concerned with . . . [t]he validity of the contract . . . ." A hotly disputed area among academics, but one which has arisen only once in CISG case law, concerns mistakes about a substantial characteristic of the goods, and whether that issue goes to the validity of the contract, or, rather, to lack of conformity.
Witz is of the view that the CISG deals exhaustively with the consequences of lack of conformity of goods. The buyer has a number of remedies, the conditions and realization of which are strictly regulated, such that the CISG would be undermined if the buyer could avoid the contract for an error concerning a substantial characteristic of the goods (p. 38). Thus, a contract would only be avoidable for nonconformity as the CISG defines it. Witz rejects the view, for example, that a buyer should be able to avoid the contract where the error claimed is that the goods proved not to be amenable to resale, even if the obstacle to resale were a regulation or ordinance banning the sale of the goods or products in question (p. 39) [LG Aachen 14 May 1993].  The problem, however, is that one can argue that such a contract is invalid, and, therefore, that Article 4 removes the issue from the CISG's scope.
Where a German court adjudicated two issues pursuant to the CISG, Witz notes a violation of Article 5 in the court's deciding not only a claim for the amount expended on repairing a machine sold under an international contract, but also a claim regarding injuries caused by the machine (pp. 39-40) [OLG Düsseldorf 2 July 1993]. Other issues arise from the CISG but are not resolved by it. Indeed, Article 7(2) specifies that
[q]uestions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.
The CISG envisages two sorts of lacunae: one where the CISG governs the issue, but does not specify a resolution, and the other where the CISG does not govern. Witz sees the particular role of CISG commentators as being to exert a restraining influence on the inclination of judges to bypass the CISG's underlying principles in order to proceed to national laws (p. 42).
The most common internal CISG gap which judges have had to fill concerns interest rates. The general trend has been to supply national interest rates, a tendency of which Witz is not critical, given the apparent absence of a related underlying CISG principle to resolve the matter (p. 42). He does criticize, however, an arbitral ruling for looking to national law rather than governing CISG principles with respect to the issue of the joint and several liability of the two signatories to a sales contract (pp. 42-43). He also criticizes a Stuttgart court which valorized a buyer's argument that the CISG should be considered in conjunction with German national law with respect to the issue of the timing of the buyer's giving notice of alleged lack of conformity of the goods. [LG Stuttgart 31 August 1989]  Witz reasons that the court was in error in failing to adjudicate solely on the basis of the CISG, where Article 38 and 39 controlled, given that they do not leave any gaps which might justify recourse to domestic law (p. 43).
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15. This was the case in LG Aachen, 14-05-1993, RIW 1993, 760 et seq.
16. The case was OLG Düsseldorf, 02-07-1993, RIW 1993, p. 845 et seq., n. P. Schlechtriem. The English text of Article 5 is as follows: "This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person."
17. Witz similarly approves an arbitrator's decision to look to national law to determine the scope of a penalty clause, nothing that the CISG drafters intended penalty clauses to come within the purview of national law (p. 42). He takes the position, however, that although recourse to national law is warranted with respect to penalty clauses, judicial interpretation nevertheless should be guided by the general principles underlying the CISG (p. 102).
18. LG Stuttgart, 31-08-1989, RIW 1989, p. 984 et seq.; Rev. dr. uniforme 1989, II, p. 853 et seq.
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