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Reproduced with permission from Juridisk Tidskrift (1991/92) 1-28

Uniform Sales Law - The Experience with Uniform Sales Laws in the Federal Republic of Germany

Peter Schlechtriem [*]

To be invited by the Law Faculty of the University of Stockholm is a great honour, and I am grateful for it and the chance to be here and talk about the Uniform Sales Law. I am especially grateful to Professor Jan Hellner, who asked me last year whether I would come to Stockholm, and who, without doubt, had considerable influence on the decision to invite me. I have to confess, however, that seeing so many experts on the Uniform Sales Law here in this lecture hall I am a little bit troubled by the thought of what I could offer. In view of the many thorough general and detailed analyses, in particular by Swedish scholars, there is hardly any question or problem that has not already been dealt with.[1] In addition, since the new Swedish Sales Law is based on the Uniform Sales Law as a blueprint. I can expect that all of you are quite familiar with the obligations of the parties and the remedies in cases of breach under the Uniform Sales Law. Therefore I will deal mainly with the requirements and sphere of application, since this will always be the first problem facing a lawyer or a court in dealing with this sales Convention.[page 1]

I. Preliminary Remarks

The United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG) came into force in the Federal Republic of Germany (FRG) on January 1, 1991.[2] In the former German Democratic Republic (GDR), now referred to as the five new states of the Federal Republic, the Convention has been in force since March 1990. But even before it became law in the Federal Republic, there were already court decisions applying this Uniform Sales Law as foreign law, for example as the applicable Italian or French law.[3] Leaving aside for a second the special problems discussed in connection with this application of the Uniform Sales Law by way of private international law, these German court decisions signal a marked difference in the acceptance of this Uniform Sales Law in contrast to the first attempt to unify the Sales Law for international contracts for the deliver of goods by the so-called Hague Sales Laws, which came into force in the Federal Republic in 1974. It took years before the courts even recognized the applicability of these Uniform Sales Laws in certain cases. The reluctance in regard to ULIS (Uniform Law for the International Sale of Goods) and ULFIS (Uniform Law on the Formation of Contracts for the International Sale of Goods) can best be demonstrated by the words of the president of a German court of appeal, who told me in 1984 that he always advised parties before him to exclude the application of the Uniform Sales Law in favour of the German Civil or Commercial Codes, an exclusion which can be agreed upon under German rules even during pending litigation.[4] Nevertheless, the Hague Sales Law in the end proved to be very successful. In 1987, when my Institute published a collection of cases decided under this Uniform Sales Laws and asked all district courts and courts of appeal to send us cases decided by them in which these Uniform Sales Laws were applied, we received almost 300 decisions, although only 5% of the courts responded to our request.

As to the United Nations Uniform Sales Law, I am confident that there will be no similar reluctance to its application. Let me give a few reasons for this optimism. First of all, while the Hague Sales Laws were known only to a handful of specialists in international and sales law, the United Nations Uniform Sales Law has been widely recognized and dealt with in the legal literature. Most legal periodicals have published articles on the Uniform Sales Law during the last few [page 2] years,[6] and there is a handful of books, i.e., commentaries and monographs [7] and many dissertations, which deal with specific problems.[8] In addition, there are, as I mentioned already, court decisions applying the Convention on International Sale of Goods, as foreign law. The German Supreme Court, in dealing with legal issues in the German Civil Code, has even quoted from the United Nations Convention in order to have a yardstick to measure the period of warranty required by a buyer in his standard sales conditions by comparing it with Art. 39 CISG.[9] It seems to be of special importance to me that there were already many conferences and symposiums dealing with the Uniform Sales Law,[10] and especially that the so-called Academy for Judges, an institution designed to inform judges about new developments in the law and familiarize them with new acts and conventions, offers lectures to introduce the Uniform Sales Law. Although I dare not generalize about the legal education offered in Freiburg, I have to add that in the courses on the Law of Obligation, the Sales Law of the German Civil Code and the United Nations Convention are dealt with and compared, and there are many seminars dealing with the Uniform Sales Law.

Therefore, I would like to summarize that the United Nations Uniform Sales Law is well known to the German legal community. This gives it a much better chance of being applied than the Hague Sales Laws. And one can hope that familiarity furthers acceptance, and therefore there will be less exclusions of the Con- [page 3] vention in contract clauses. However, I must admit that there are already proposals made by trade associations to their members to exclude the application of the Uniform Sales Law. But I think these pockets of resistance will not last very long. First of all, since the courts in applying the Hague Sales Law have already decided, after some hesitation, that an exclusion of the Uniform Sales Law has to be explicit and clear, recourse to an exclusion which is implied from the circumstances will rarely be successful.[11] This means that, for example, a reference in standard form contracts to the applicability of German law is not sufficient to exclude the Uniform Sales Law since it is part of German law and thereby included by such a reference.[12] Only if the respective clause states that the German Civil and Commercial Codes should be applicable, and that the United Nations Sales Law is explicitly excluded, would such a clause be regarded as sufficiently clear. But even then, those using such an exclusion clause cannot be sure that it will be upheld. First of all, I have doubts about what the courts will do in applying the German law regulating standard form contracts to such clauses. So far, the majority of legal writers are of the opinion that a standardized exclusion is possible.[13] But even if this opinion prevails, there is still the problem of the battle of the forms. It can be expected that not only the German party to a contract will use standard forms excluding the Uniform Sales Law and referring to the German Civil and Commercial Codes, but that foreign parties will use similar clauses referring to their own domestic law and thereby conflicting with the German party's provision. This will probably result in great uncertainty as to the applicable law, which should induce parties to think twice before running such a risk.

II. Requirements of Application

The application of the Convention relies on autonomous requirements combined with the rules of private international law of the lex fori.

1. Internationality

a) A basic requirement for the application of the Convention is that the parties have their place of business in different Contracting States, Art. 1. If there is [page 4] more than one place of business, the application depends on the place of business in a Contracting State with the closest connection to the contract and its performance, Art. 10. If there is no place of business, the habitual residence of the party must be in a Contracting State. In other words, the only international requirement is place of business or habitual residence in two different Contracting States. But this international prerequisite must be discernible from the dealings of the parties, from informations disclosed by them or other circumstances, Art. 1(2). If, for example, a contract is concluded among Germans in Germany and only later it turns out that one of the contracting partners has his place of business just across the border in France from where delivery is to be made, this would not be an international sale under the Convention.

On the other hand, the nationality of the parties or their status as merchants is without any influence, Art. 1(3). Therefore, not only international contracts of commercial merchants, but of professionals such as lawyers or doctors can fall under the Convention, if, for example when a lawyer in Hamburg buys some office furniture from a Danish seller.

b) The application of the Convention, when both parties have their places of business in different Contracting States, is of course the easy case. This will be the most common case, since there are by now more than 30 states which have ratified or acceded to the Convention.[14] More difficult seems to be the application of the Convention when the private international law rules of the forum state lead to the law of a Contracting State and the parties have their places of business in different states. The respective rule in Art. 1(1)(b) was thoroughly discussed in the preparation of the Convention and it is still a topic about which much ink is spilled.[15] I believe, however, that the provision is not only clear and therefore easy to apply, but also contains a fair and reasonable [page 5] solution. Its application was the only basis of applying the Convention in Germany until January 1, 1991, in other words, before the Convention went into force in Germany.[16] The usual situation was that the seller had his place of business in a Contracting State where the Convention was already in force, for example France or Italy, and the German rules of private international law led to the application of French or Italian law. Since the Convention was enacted in these states, the Uniform Sales Law as part of their law was to be applied according to German conflict of law rules. The only issue to be solved was whether Italian or French law in these cases meant the Code Civil or Codice Civile or the Convention as part of Italian or French law. This question is solved by Art. 1(1)(b).[17] If private international law rules lead to the application of French or Italian law, this Article, as a provision of French or Italian law, regulates which body of French or Italian law is applicable. In other words, the function of Art. 1(1)(b) is the same as that of legal provisions telling us whether in Germany the Commercial Code or the Civil Code is applicable, or whether a loan is covered by the Consumer Credit Act or by the common rules in the German Civil Code concerning credits. It is not in itself a international conflict of law provision.[18]

If one understands the function of Art. 1(1)(b) as that of distributing legal issues among several bodies of law within a legal system, another much disputed problem arises. Article 95 allows that in ratifying the Convention a state may declare a reservation that it will not enact Art. 1(1)(b). What if the conflict of law rule in the forum leads to the application of the law of such a reservation state, that is, a state which has enacted the Convention without Art. 1(1)(b)? The solution is obvious. Since this state, by having used the reservation of Art. 95, will not apply the Convention unless the requirements of Art. 1(1)(a) are met, it is not sufficient that the parties have their places of business in different states. Therefore, the forum state has to apply the law of the reservation state in the same way as the latter state's legal system, namely, without applying the Convention and instead applying domestic or, in case of [page 6] renvoi,[19] another foreign law. The forum state, in other words, is only accepting the decision of the reservation state not to apply the Convention if the parties do not have their places of business in Contracting States. For example, if in a contract between a buyer from the Netherlands and a seller from the United States, the Netherlands' conflict of law rules point to the application of American law, the courts in the Netherlands have to ask themselves whether an American court would apply the Convention or not. Since the Netherlands are not yet a Contracting State and the United States has used the reservation of Art. 95 and has not enacted Art. 1(1)(b), the Americans would not apply the Convention because both of the parties do not have their places of business in Contracting States. The Dutch court has to follow this result of the applicable American law. The German legislator has embodied this solution in the so-called Vertragsgesetz, i.e., the legislation enacting the Convention. So, if the sales contract between parties in the United States and the Netherlands for some reason came before a German court, and German conflict of law rules pointed to the application of American law, the German court could not apply the Convention.

c) The parties can derogate from the CISG wholly or in part, Art. 6. Although not mentioned in Art. 6 as it was in Art. 3 ULIS, one has to assume that an exclusion of the Convention does not have to be made expressly but can also be implied.[20] As mentioned before, an implied exclusion of the Uniform Sales Law was a problem often dealt with under ULIS, when, for example, standard contracts conditions referred to "German Law". The German Supreme Court decided after some wavering that a reference to German law included the Uniform Sales Law and therefore should not be read as an exclusion of the Convention. It held, however, that if the standard form contract contains clauses that were clearly based on the German Civil Code, this might allow an interpretation of the exclusion clause that the parties had the intention to derogate from the Uniform Sales Law. . . ."

2. Sale of Goods

a) The Convention is applicable only to contracts for the sale of goods. These are -- as Art. 1(1) ULIS expressly stated -- movables. This was contested at a recent conference in Bern, Switzerland by one of my German collegues. He [page 7] said that even computer software can fall under the Convention.[22] There are certainly good reasons to enlarge the sphere of application of the Convention by understanding the concept of goods liberally not literally, but as far as I remember from the Vienna Conference, there was a strong conviction among many delegations that the sale and transfer problems of intellectual property and the like were not within the mandate of the Conference. This alone, of course, cannot answer the question whether computer software can be regarded as movables. It is a problem much dealt with in German literature not only in regard to the application of sales law provisions but also in regard to product liability.[23] If the contract concerns so-called standard software, i.e., a program not designed especially to meet a specific customer's demands, and if this program is recorded on a disk or tape, one could argue that the object of the sale falls under the Convention since it is movable and therefore "goods". The special problems of copyrights in regard to standard software could be solved according to Arts. 42 and 43. But if the software is specifically designed for a customer, I would regard this as a contract in which a preponderant part of the obligation consist in the supply of certain services and therefore excluded from the Convention by Art. 3(2). Of course, contracts for the sale of real property or rights do not fall under the Convention. Even if rights embodied in negotiable instruments were treated like movables under domestic law, they would not fall under the Convention. Article 2(d) expressly exempts negotiable instruments from the application of the Convention.[page 8]

The Convention is, however, applicable to contracts for goods to be manufactured or produced, Art. 3(1). As with Art. 6 of ULIS, contracts in which the party who orders the goods also supplies a substantial part of the materials are excluded from the scope of the Convention. Insignificant amounts of materials supplied by the manufacturer are not sufficient to bring the contract under the Convention. Therefore, the sale of an industrial plant to be constructed by the seller is governed by the Convention unless the buyer provides a substantial part of the necessary materials, or if the delivery of know-how and the management are more important than the material.[24]

In the latter case, the Convention does not apply if the preponderant part of the obligation of the party who furnishes the goods consists of the supply of labour or other service (Art. 3(2)), for example, when construction teams of a German construction firm build a bridge in Italy from material provided by the Italian party, whereas only the nuts, blueprints and bolts are imported from Germany.

In general, the German courts did not have problems with the corresponding provision of ULIS (Art. 6). There were, for example, cases dealing with the delivery of mining equipment that had to be assembled at the buyer's place [25] or contracts for the delivery, installation and the operation of a machine in which the respective contracts were regarded as sales contracts.[26]

Difficulties and problems might arise in cases of mixed contracts, where, for example, there are elements of a sale but also of a lease. If the elements can be separated, it is my opinion that in regard to the sales elements, the Convention applies, while domestic law applies to the other obligations. But the parties are also free to make the Convention rules applicable to the non-sales part of the contract, and it might well be that there is an implied choice of the Convention law.[27] [page 9]

3. Borderlines and Gaps

a) International Uniform Law always cuts certain segments out of very complex economic and legal relations. Uniform Law necessarily is only a partial regulation. My colleague Hein Kotz, in response, has described Uniform Laws as islands in a vast ocean of domestic laws; islands with a rather foggy coastline.[28] That makes it necessary to think about the exact borderline that separates the sphere of application of the Uniform Law from the sphere beyond. A part of this borderline was already mentioned. Only contracts concerning movables are governed by the Uniform Sales Law. In addition, it must be a sales contract -- leases or agency contracts do not fall under the Convention. In a given case, however, there might be problems of characterization, for example regarding leasing contracts which in fact are financed sales. Leasing contracts are characterized under German law as instalment sales if the lessee in the end pays the entire price of the object (i.e., price and credit costs) and has an option to acquire title to the object when the lease is terminated.[29] Such a case has not yet been decided under Uniform Sales Law but I expect that if the requirements for an installment sale under domestic (i.e., German) law are met, the German courts would regard such a contract as a sales contract also under Uniform Sales Law rules. If it were a consumer sale, however, the exception of Art. 2(a) would apply (see below). As another example, let us take a case decided under ULIS, where under a contract the German party was to be an agent for an Italian manufacturer of heating systems but was obliged to accept a certain number of these systems per year and pay for them whether he could resell them or not.[30] In cases of this kind it was held that there was, basically, a series of contracts "framed" by an agency agreement, and ULIS was applied to the sales parts of the transaction.[31]

b) More important are the issues which, by way of a functional characterization, would be regarded as problems of sales contracts. For a number of these problems, the Convention itself excludes its application, so that domestic law is applicable by way of conflict of law rules. The Convention, for example, is not applicable to sales of goods bought for personal, family or household use, (Art. 2(a)). Consumer contracts, therefore, are in most cases excluded from the application of the Convention, thereby avoiding clashes between domestic consumer protection laws and the Convention. There is, however, an exception if the nature of a consumer contract was not recognizable to the seller. If, for example, a lawyer in Stockholm orders a swivel chair using his law firm's letterhead but intends to use this chair only for sitting in front of this TV set in his private home, this household use could not be known by the seller. Consequently, the exemption for consumer contracts would not ap- [page 10] ply.

c) An important exception from the sphere of application of CISG is governed by Art. 5. The responsibility of the seller for death or personal injury is not governed by the Convention but by domestic law determined by the rules of private international law. It was the declared intention of the drafters of the Convention that product liability should not be included.[32] However, the Sales Convention is applicable if only property damage occurs as a consequence of some defect in the goods sold under a ClSG contract.

d) The validity of a contract is generally governed by domestic law unless it concerns the conclusion of the contract by offer and acceptance, Art. 4(a). The capacity to contract, the powers of an agent, the consequences of mistake, gross unfairness, unconscionability and fraud are governed by domestic law. Domestic law prevails especially when contracts are considered invalid because the underlying sale is immoral or illegal and void according to domestic law. Economic regulations such as export or import controls, or consumer protection laws which prohibit certain clauses, may void contracts falling under the Convention. Thus, the buyer's right to revoke a contract under certain conditions provided for by consumer protection law has to be reckoned with if the respective domestic law contains such a right to revoke. The applicability of domestic law in this regard does not depend upon whether the invalidity occurs by operation of law, by judicial decision or government intervention, or by an act of a party, such as a declaration to revoke.[33]

This priority of domestic provisions on the validity of contracts must, however, cede where the issue is specifically covered by the Uniform Sales Law Convention -- but I have to add that there is a growing discussion in this regard. Let me give a few examples. Under German law, as in many other legal systems stemming from Roman law and contrary to Common Law and Swedish law, a contract is void if it requires performance of something which was objectively impossible at the time of the conclusion of the contract (impossibilium nulla est obligatio). However, under Uniform Sales Law, a contract to deliver goods [page 12] that have already perished at the time of the conclusion is to be regarded as valid. The impossibility of the seller to deliver is a breach of his obligation which gives the buyer the appropriate remedies, but does not make the contract void as under an applicable domestic law.[34] More important is the priority of the Convention in regard to non-conformity of goods or rights of third parties to the goods. Even if non-conformity of goods or third-party claims to the goods may give rise to avoidance for error, as, e.g., under Swiss and Austrian law, the remedies under the Convention should have priority over the domestic law and its provision on avoidance for error.[35] One last example: if one of the parties was in error about the capacity of the other party to perform or about his creditworthiness, this again may be a cause for avoidance for error under domestic law. Under the Convention, however, this problem is dealt with in Art. 71 by granting the party only a right of suspension which can be rebutted by an adequate assurance of performance by the other party. Therefore, there is no room for national rules to avoid the contract for error.[36] The uniformity reached by the Convention would be in grave danger if in these instances national provisions could be applied because the application leads to invalidity or avoidance of a contract and thereby could be brought under Art. 4(a).[37]

A similar problem is caused by concurring actions under domestic law. The same rule of priority of the Convention should apply if issues regulated by the Convention could lead to a remedy under domestic law which is inconsistent [page 12] with the Convention. A good example is the Israeli case Harlo & John's Ltd. v. Adras. An Israeli buyer had bought steel from a German seller. The contract was improperly performed. The buyer, however, had lost his remedies under ULIS by lapse of time and lack of notice, and he had lost a litigation in which the courts up to the Israeli Supreme Court applied the Hague Uniform Sales Law. Then the buyer started a new litigation saying in nuce that the German seller, by not performing the contract and not being held liable under ULIS, was unjustly enriched. The buyer succeeded in claiming benefits which the German party allegedly had derived from not performing the contract properly under unjust enrichment rules. In this instance, the rules of the Convention and its requirement for certain remedies were pushed aside by a restitutionary remedy under domestic law.[38] Even more frequent could be a concurrence of remedies for breach of contract and tort actions. Concurring actions that overlap with the remedies of the Convention and could lead to a derogation of the requirements for certain remedies under the Convention can sometimes also be based on tort law. If, for example, cattle feed delivered under a contract is contaminated and the buyer's livestock dies, he not only has a claim for damages under the Convention -- because these consequential damages surely were within the contemplation of the parties [39] -- but also a tort action under domestic law, for example product liability rules. If the buyer does not give notice in time he loses his remedies under the Convention (Art. 39), could he nevertheless claim damages under domestic tort law? Even more dangerous is a tort action if it lies for purely economic loss. This, as far as I know, is a rare exception in most legal systems, but is nevertheless possible. Under German law there is special legislation dealing with feed. The violation of this legislation by the delivery of contaminated feed is a tort, and the buyer can claim damages under tort provisions for his purely economic loss.[40] Could such a claim supercede the requirements of the Convention? I can only give a very tentative answer.[41] The two cases, in my opinion, have to be distinguished. As to property damages, tort rules are applicable and an action for damages is not barred by lack of notice.[42] A tort action in these cases is based on the general obligation not to harm another person's body or property. As Art. 5 shows, these general rules and obligations are not dealt with in the Convention and therefore not pushed aside even in cases where a concurring remedy under the Con- [page 13] vention is possible. Quite different, however, is the situation in regard to purely economic loss. The protection of purely economic interests is primarily a domain of contract law. These interests are created and protected by contracts and contract law. As such, the special requirements for actions under contract law should have priority even in cases, where for some historical or policy reasons, a legislator protects these interests also by tort law rules. Deciding otherwise would open the door for national legislators to deviate from the Convention at will. A national legislator could enact a law creating tort claims for every buyer if the object of a sales contract is defective and the buyer suffers a purely economic loss. Leaving aside the possible impact such legislation and such a rule on the concurrence of action could have within the domestic law, it would signal the end to the uniformity reached by Uniform Sales Law. Purely economic loss suffered by a buyer because the goods purchased do not conform to the contract, therefore, should be a question regulated exclusively by the Uniform Sales Law.

e) The Convention does not regulate periods of limitation. In Vienna, the Limitation Convention of 1974 was adjusted to the rules of the Convention. But the success of this Limitation Convention is questionable. The FRG will not enact it. Instead, we have a special provision dealing with the remedies of the buyer for non-conformity of the goods which sets a 6-month period of limitation for the buyer running from the time of notice of defects.[43] There is, however, a peculiarity stemming from the reunification of Germany: The former GDR had already enacted the Limitation Convention. While under the Unification Treaty, the law of the FRG was generally extended to the territory of the former GDR, there are some exceptions leaving certain acts or single provisions of certain acts for the GDR in force. One of these exceptions concerns the Limitation Convention.[44] Therefore, we now have two bodies of law applicable in regard to the period of limitation in case of sales falling under the Convention, a state of affairs that I regard as very regrettable.

f) Matters excluded from the application of the Convention despite being questions in the context of sales, pose only minor problems compared with those issues which are not expressly excluded from the ambit of the Convention but are not clearly regulated. The German literature uses the term "internal gaps" for these problems.[45] Under Art. 7(2) they have to be decided "in conformity with the general principles on which the Convention is based" and only in the absence of such principles within the law which is applicable by virtue of the rules of private international law. Obviously, this poses vexing problems. First of all, what are questions concerning matters governed by this Convention but not expressly settled in it"? For example, if declarations regulated by the Convention are made by a messenger, is this a communication regulated by [page 14] the Convention? Or how about an acceptance sent by fax? And if we answer the first question in the positive by regarding messengers and faxes as matters governed by this Convention, but not expressly settled in it, what are the principles that could be applied if we have to deal with a messenger who delivers his message too late or distorted, or if the fax does not reach the offeror because his own machine is not working properly?[46]

III. General Provisions

Articles 7-13 contain general rules applicable to the provisions on the conclusion of international sales contracts as well as to the provisions regulating the content of such contracts. They should be mentioned briefly.

1. The suspicion that the uniformity of the Convention is only one of words and not of meaning and content was already mentioned in connection with the gap-filling problem. But it is even more of a problem regarding the interpretation of the rules and concepts of the Convention itself. Article 7(1) tries to prevent diverging interpretations by referring to the international character of the Convention, the need to promote uniformity in its application, and the observance of good faith in international trade. These are directives, on which everybody can agree, but which hardly guarantee a uniform interpretation. In fact, the problem -- or better the probability -- that courts in interpreting the Convention will be influenced by concept and solutions found in their domestic law seems to be very real. Lacking a supreme court in charge of guiding the interpretation of the Convention, UNCITRAL is about to create a system of national reports with the responsibility of reporting judicial decisions in their respective jurisdictions. These reports will then be published by UNCITRAL in order to give information and thereby facilitate the functioning of judicial decisions of not as precedent, as persuasive authority for other courts and courts in other countries.[47] I do hope that UNCITRAL will succeed with this plan, but I am reluctant as to its prospects. First of all, I am afraid that the national reporters will have difficulties collecting cases because not all countries which have ratified the Convention have the same standards regarding access to court decisions and their analysis. In addition, it is to be feared that there will be great differences in the reporting so that the court practice of some countries which is recorded properly and extensively will gain more influence than the judicial decisions from countries where the reporting system is less developed or the national reporter less eager to transfer his results [page 15] to UNCITRAL. But in general, I think the approach of UNCITRAL has its merits because the problem of diverging interpretation to me seems to be a problem of information. Short of a functioning reporting system, I think it is our obligation, i.e., the obligation of legal scholars, to collect as many cases as we can get and to analyse the literature of other countries as thoroughly as possible in order to present the full picture of interpretations and opinions to our own jurists.

2. The interpretation of the declarations of the parties should be governed by the subjective intention of the declaring party, but only insofar as this intention was recognizable to the other party, Art. 8(1). If it is not recognizable, statements are to be interpreted according to the understanding of a reasonable person similarly situated. This is in conformity with the rules of interpretation of party statements under German law and of many other jurisdictions.[48] In the process of interpreting the intention of a party or the understanding of a reasonable person, consideration is to be given to all relevant circumstances including negotiations, practices between the parties, usages and subsequent conduct of the parties. Lacking provisions on the control on standard form contracts, I think the one tool that may come to grips with standard contracts is Art. 8(2). It enables the courts to ignore fine print which is contradictory, vague, or difficult to understand by using a "reasonable person similarly situated" standard. And it is also possible that fine print in a language which under normal circumstances could not be expected to be understood by the other party will not determine the content of the contract.

3. Usages are to be considered only if the parties have agreed upon them, Art. 9(1). Without an agreement on usages, it will be regarded as implied only if these usages are widely accepted in international trade and regularly observed by parties to contracts of the type involved in the particular trade concerned, Art. 9(2). This cuts back severely the application of usages in comparison to the respective ULIS provision where it was sufficient for a local or national usage to become part of the contract if the parties usually would have considered that usage as applicable. It was on account of arguments of representatives of developing and socialist countries, who were afraid of being submitted to "capitalistic" usages, that this restriction on the recognition of usages was incorporated in Art. 9.[49]

4. The Convention is based on the principle of freedom of form. Article 11 not [page 16] only applies to normal form provisions in the domestic laws, but also to procedural provisions excluding evidence by witnesses and thereby forcing parties to secure evidence by concluding their contracts in writing. Freedom of form applies to all statements and declarations in connection with the conclusion of the contract, its modification, termination and performance. The parties are, however, free to deviate from this provision under Art. 6 and to agree upon form requirements for various statements or for the contract as a whole.

The principle of freedom of form was heavily debated in the preparation of the Convention.[50] As a concession to all states who wanted to preserve the form requirements of their domestic laws, there is a reservation clause in Art. 96.[51] Freedom of form is, therefore, not applicable for a sales contract or its modification if a party to the contract has its place of business or habitual residence in a state which has made the Art. 96 reservation. This has already caused diverging opinions about the question of whether in cases where a party has its place of business in an Art. 96 reservation state, the form requirements of the domestic law of this state will always apply [52] or whether the conflict of law rules of the forum state can lead to a domestic law that in turn is based on the principle of freedom of form.[53] Take, for example, a sales contract between a German seller and a Russian buyer. The Soviet Union has made the Art. 96 reservation. Under the first opinion, the contract has to conform to the requirements of Russian law. Under the second opinion, the rules of private international law of the forum state have to be consulted concerning which domestic law is applicable. If, for example, in a German court the conflict of law rules lead to German law, the contract would be valid regardless of the Russian form requirements.

In general, I expect the problem of form to be of minor importance. Many, if not most international contracts today are in writing. The modification of a contract might be the only case where the parties rely on oral or telephone communications without regarding this or that form requirement. Article 13, which was enacted in response to a motion of the FRG, was intended to ensure that even in case of parties in reservation states or a clause requiring "writing", conclusion, rescission or modification of the contract by telegraph or telex will be sufficient. This Article, however, is widely misunderstood as being only a definition of the term "writing" used in a few provisions of the Convention dealing with [page 17] agreements in writing, such as Art. 29(2).[54] Such a restriction of this provision would, to say the least, be contrary to the intentions of its drafters who wanted to see a communication by telegraph or telex as sufficient as "writing" for all cases where a form requirement would apply. Article 13, in other words, was intended to be a uniform provision for the form requirement "writing", whatever its source may be.

But Art. 13 poses another interesting problem. When this norm was drafted, communication by fax was almost unknown in Europe and therefore not mentioned in this provision. Let us assume that the contract itself requires modifications to be made in writing. Would a modification using faxes be acceptable under Art. 29(2) which requires that a written contract requiring any modification by agreement to be in writing? I think that this problem is one that can be solved on the basis of the gap-filling provision found in Art. 7(2). Since fax was unknown when the Convention was drafted, there is an internal gap to be filled according to the general principles on which the Convention is based. Article 13 contains such a principle. Electronic means of communication fulfill the writing requirement if they lead to a printed and material text which the parties can put into their files, submit to their superiors, to government boards or to tax authorities. Most importantly, it can serve as evidence which is as reliable as a telegram or telex. Therefore, I think that a fax could be brought under Art. 13 and would be sufficient as a "writing".

IV. Conclusion of Contracts

The Convention governs the conclusion of contracts by corresponding declarations of will, offer and acceptance. This is the traditional mode of concluding a contract. However, it neglects other ways to come to an agreement, especially those procedures used quite frequently in big deals where the parties negotiate over a lengthy period of time reaching agreement point by point. In such instances, it is very difficult and sometimes arbitrary; to point out at what stage there was an offer and an acceptance. Again, this kind of conclusion of a contract should be regarded as an internal gap in the Convention which can be filled through recourse to the general principles and not to domestic law as determined by conflict [page 18] of law rules.[55] The basic principle to be applied here is that is that if there is an agreement between the parties, a contract is concluded regardless of the sequence of statements and declarations that lead to the agreement.

But as mentioned before, the CISG only regulates the consent of the parties by matching declarations of will. Capacity, errors, the power of representatives, etc., are not matters governed by this Convention, but instead are within the domain of the domestic laws. Since Sweden has not enacted the formation of contract span of the Convention, I shall refrain from explaining the details of Articles 14 to 24. Instead, I shall only deal with two problems.

a) First of all, Art. 14 describes the requirements of an offer and thereby of a contract as well. It requires that in order for a proposal for concluding a contract to be considered an offer, it must be sufficiently definite which means it must expressly or implicitly fix or make provisions for the determining of the quantity and the price of the goods. The requirement of a certain price was especially the cause of much debate in the preparation of the Convention and already provides a quarry for many scholarly contributions and dissertations. It apparently contrasts with Art. 55 which obviously is based on the assumption that a contract can be concluded without determining the price.[56] This contradiction slipped into the Convention because the Scandinavian states were not interested in the formation-of-contracts ([Part]II) of the Convention, but were very eager to have a provision like Art. 55 for contracts without an agreement about the price. I will not bore you with a detailed description of the many theories advanced to explain the meaning of Art. 14 and the alleged or denied collision with Art. 55. I do hope that in practice, the problem of the definite price -- pretium certum -- will be of no importance. First of all, it is sufficient if the parties have implicitly provided a method for determining the price. Reference to price lists, to the market price at a given moment or even to the determination of the price by some expert is certainly sufficient. Since the parties, under Art. 6. can derogate from Art. 14 and its requirement of a certain price, it is possible that the parties intended to conclude a binding contract without making provisions for the price thereby derogating from Art. 14(1). Such an intention can be inferred particularly from the behavior of the parties, for ex- [page 19] ample if they perform the contract regardless of the omission of the price. The horror example often used in Vienna. that the captain of a ship stranded with a broken shaft orders this shaft from the shipyard without bickering about the price and later contends that there was no valid contract for lack of a certain price is just that: a horror tale which is basically false. Only in very exceptional cases may the omission of the price lead to the conclusion that a proposal for concluding a contract was not yet a valid offer, and that the declaration of acceptance, which also does not mention the price, cannot be treated as a binding offer either.

b) The second problem worth mentioning is the battle of the forms. Although brought up in Vienna, the Conference did not dare to tackle this problem.[57] It has to be decided by applying Art. 19, a provision ill-suited for the battle of forms problem.[58] Since standard contract forms used by the parties can hardly ever be regarded as not materially altering the terms of the other side, the collision of standard forms has to be solved under Art. 19(1). If the offeree replies to an offer by referring to his standard clauses, his answer has to be regarded as a rejection of the offer and a counter-offer. If in turn, the first offeror answers this counter-offer by referring to his standard clauses, we have another counter-offer and thus, no contract. There will be a contract only if one party stops referring to his standard clauses and performs the contract thereby indicating assent and accepting the last counter -- or counter-counter-offer -- of the other side. This means that the party last referring to his standard form will succeed (last shot principle) -- hardly a satisfying result.

c) Article 29 allows the modification or termination of the contract by agreement. This rule is obvious to a German lawyer, but it is of some importance for the Common Law lawyer because the modification which relieves one party of a part of its obligation does not require consideration or "good faith" according to comment 2 to Art. 2-209 of the U.S. UCC. In addition, Art. 29 has to be interpreted as meaning that such a modification or termination must comply with the provisions for the conclusion of the contract. In other words, the uniform rules for the conclusion of the contract also apply to its modification or termination. In order to determine what rule governs a modification or termination of the contract, reference to domestic law by way of private international law is not necessary. This question caused some difficulty under ULIS [59] and is now settled by Art.29. If, however, a state has declined to enact the formation part of the Convention, as Sweden did, the domestic law has to govern the agreement to terminate or mod- [page 20] ify a ClSG-contract, although Art. 29 was enacted as a provision of part III of the Convention.

d) Article 29 (2) deals with the situation where the parties have agreed on writing or another form and then are bound even in case of modification or termination of the contract by their own form requirement. Under German law they can orally abolish the form requirement and then modify the contract.[60] This solution was not accepted in Vienna, but the same results will probably be reached by the estoppel solution in Art. 29(2)(2), which was influenced by Art. 2-209 (4),(5) UCC.

V. Substantive Sales Law

1. System and Principles

The system of the substantive provisions of the Convention on the International Sale of Goods is easily understood. After an introductory first chapter with general provisions, chapters II and III regulate the obligations of the parties and the remedies in case of breach in a mirror-like manner. First, there is a list of obligations of the seller and then the corresponding remedies for all possible violations of these obligations. Conversely, chapter III first regulates the obligations of the buyer and then the corresponding remedies of the seller. But as Prof. Hellner has pointed out, this symmetry, although meeting needs of aesthetic drafting, might turn out to be inappropriate in certain situations especially regarding the seller's remedies in case of breach of the buyer's obligation to take delivery.[61] Chapter IV contains provision on the risk of loss, while chapter V contains provisions common to both the seller's and the buyer's obligations.

2. Remedies

The provisions on remedies are the backbone of the Uniform Sales Law. In my opinion, the success of the unification depends on the understanding and uniform application of the provisions on remedies. I have to restrict myself to the principles.

The Convention uses three basic remedies:

1. specific performance.

2. damages, and

3. avoidance of the contract.

In addition, there is

4. the suspension of performance as a remedy less severe than avoidance, and finally [page 21]

5. the reduction of price in case of non-conforming goods.

Generally, each of these remedies, except the reduction of price, is applicable to every breach of obligation regardless of the nature of the obligation breached or the way in which the breach took place. But this general principle is not without exceptions. Furthermore, despite using the conceptual approach of general provisions, the Convention does not regulate these remedies as a part of the general provisions. General provisions about how the avoidance of a contract can be declared and the decisive requirements for breach of contract, can be found only in chapter I of the third part of the Convention. In addition, there is a restriction on the remedy of specific performance in Art. 28. General provisions for the most important remedy of damages can be found, however, in Arts. 74-77 and 79. In addition, the provision for suspension in the case of uncertainty of performance by the other party is to be found in Art. 71, for the avoidance before an obligation has become due (i.e., anticipatory breach) in Art. 72 and for the breach of installment contracts in Art. 73. Other provisions of a more of less general character can be found in chapter V regarding the effect of avoidance, the obligation to preserve the goods (Arts. 85 and 86), the self-help sale (Art. 88) and in particular the restitution of goods or benefits received in case of avoidance.

3. Central Concepts

The Convention uses a few central concepts which serve as a foundation for some of the remedies.

a) One of the central concepts of the Convention which is of great importance for remedies in case of breach of an obligation is the fundamental breach defined in Art. 25. First, if there is a fundamental breach, no passing of risk will occur, Art. 70. Second. the buyer's remedy to claim the delivery of substitute goods is dependent on the qualification of the non-conformity as a fundamental breach. Finally, and most important of all, is the concept of fundamental breach as a requirement for the avoidance of the contract. The claim of the buyer for substitute goods as well as avoidance of contract means in practice that the rejected goods have to be returned to the seller or stored. This causes additional costs and may expose the goods to additional risks of deterioration. The concept of fundamental breach and its function is therefore easily understood. Only in the case of a very serious breach of contract should this costly and risky remedy be granted. In addition, the avoidance of a contract means an exception to the principle of pacta sunt servanda. This principle -- that contracts have to be kept and correctly performed -- is a principle which someone who deals whith world economic problems recently described as the key to the economic success of the western economies.[62] The precise definition of what constitutes this threshold for avoiding a contract was very [page 22] difficult.[63] Particularly, it was contested whether the gravity of the breach should be measured on the basis of the ensuing damages of the other party, or whether the importance of the obligation and the creditor's interest alone should be the decisive factor. The final formulation of Art. 25 has to be understood, in my opinion, not as relying on the amount of actual damages, but rather as meaning that the special interests of the creditor should be the yardstick to measure the seriousness of the breach. If, for example, the seller does not deliver in time, whether the buyer can immediately avoid the contract or must first set an additional period of time for performance by the seller, depends on the importance of the date of delivery agreed upon by the parties. If the date was of the essence for the contract, however, the buyer need not prove whether and how much damages he suffered from the delay. For example, if a buyer of steel makes it known that the quality of the steel to be delivered must under all circumstances conform to certain standards, the respective promise of the seller, i.e., his warranty, will give enough importance to this term of the contract so that its breach amounts to a fundamental breach allowing avoidance.

The purported vagueness of the concept of fundamental breach is often criticized and given as a reason to exclude the Uniform Sales Law.[64] But if I may draw from the German experience with the corresponding provision of ULIS, I dare say that the courts will not have problems in applying the concept of fundamental breach. A great number of cases decided by German courts concerned the issue of delay in delivery. Only in a few cases were the courts convinced that the date was of the essence for the buyer, e.g., if certain fashionable goods were bought to be resold in the next season.[65] In most cases, however, the buyers had set an additional period of time and avoidance was granted because this additional period of time had elapsed.[66] In other cases, where the buyer had not set an additional period of time, and the time of delivery was not of the essence, the remedy of avoidance was not granted. Non-payment was almost never regarded as a fundamental breach.[67] Only in one case, where the buyer denied to be bound at all by the contract and therefore did not pay, was his behaviour regarded as a fundamental breach. Other cases where the concept of fundamental breach was applied, concerned part delivery -- when the buyer at the conclusion of the contract had made it clear that only delivery of the total of the goods would satisfy his interests.[68] An important group of decisions consists of cases of non-conformity. However. non-conformity as such was never regarded as a fundamental breach. Only in the case of a [page 23] forgery of the goods did the German Supreme Court find that this non-conformity amounted to a fundamental breach.[69]

I expect the same results in applying the United Nations Convention. Hardly ever will nonconformity amount to a fundamental breach -- even if so-called "aliud" is delivered. This may amount to a special interest only if the buyer asks for certain guarantees concerning the quality of the goods, the violation of which could be regarded as a fundamental breach.

The avoidance of the contract does not occur ipso facto under the Convention but needs a declaration of the party avoiding the contract under Arts. 26 and 27. It has appropriately been criticized [70] that the concept of ipso facto avoidance, which was used by ULIS, was dropped in the United Nations Convention,[71] thereby allowing a party to wait and see how the market will develop, and speculate on account of the party in breach before avoiding the contract.

b) In regard to the remedy of specific performance, Art. 28 imposes a restriction as a compromise with those legal systems, such as the English, which generally deny a remedy of specific performance. Art. 28 allows the court to enter a judgement for specific performance only if it would do so under its own law in respect to similar contracts of sale. In other words, Art. 28 contains a conflict of law provision referring to the rules of the forum on specific performance and giving them priority over the Convention. Although meant only as a concession to Common Law countries,[72] this provision may be misused as a door-opener for provisions of domestic law allowing the denial of or derogation from obligations, for example in cases of impossibility or clausula rebus sic stantibus. This would, of course, destroy the uniformity.[73]

c) Damages, governed by Arts. 74 to 79, have to be paid in money and are not to [page 24] be recovered as restitution or restoration. They require a breach of an obligation regardless of whether the breach consists of non-preformance, late performance or imperfect performance. As an additional requirement, liability of the party in breach under Art. 79 is necessary. The party in breach can, however, excuse himself for a failure to perform only under the circumstances described in Art. 79. In addition, the party in breach may not be liable to the extent that the breach was caused by an act or omission of the other party, Art. 80.

Article 79 has caused some problems and raised some questions. First of all, there is the rather theoretical discussion of whether Art. 79 is based on the fault principle of continental law, as one English author interprets this norm.[74] or whether it is more closely related to the principle of guarantee, from which the debtor is excused only in exceptional cases. I think that this is mainly a play of words. The characterization of the excuse in Art. 79 as an expression of the fault principle or something else would first require a clarification of what fault exactly means. Since even under a system where liability is based on the notion of fault, i.e., a willful or negligent breach of an obligation, one may arrive, by narrowing the possibilities for rebutting the presumption of negligence, at a point where the results are the same as under no-fault principles of liability.[75]

The excuse granted in Art. 79 exempts only the breaching party from liability for damages. All other remedies of the other parties are not affected by this excuse, Art. 79(5). That means, that even in case of impossibility, the other party could ask for specific performance -- a result that is hardly convincing.[76]

Without excuse the party in breach is liable also for consequential damages insofar as they were within the contemplation of the parties at the time of the conclusion of the contract. Contrary to Swiss [77] or Swedish sales law, there is no additional fault requirement to recover those heads of damages.

Another problem with Art. 79 is how far the debtor is responsible for failure of a third person whom he has engaged to perform his obligations. Article 79(2) makes excuse for the debtor in these cases more difficult because he not only has to prove the requirements for excuse in regard to himself, but also in regard to the third party.[78] Nevertheless, there was the understanding that Art. 79(2) is meant as an easing of the requirement for excuse.[79] [page 25]

The amount of damages is restricted by the so-called contemplation rule: Only such damages, which the party in breach could have foreseen or did actually foresee at the time of the conclusion of the contract are recoverable. Again, this is a general principle which could well have been formulated as a general provision.

4. Uniform Sales Law Cases Decided by German Courts

a) If I were asked to answer from our experience in collecting cases decided under ULIS, what the main problems in international sales were, I would name two groups of cases. First of all, many cases have dealt with the obligation of the buyer to pay. But leaving aside excuses and exemptions claimed by the buyer, the main problem in many cases was the question where the price had to be paid. The determination of the place for payment was a prerequisite for the jurisdiction and venue of courts under the European Convention on Jurisdiction and the Execution of Judgements in Civil and Commercial Matters of Sept. 27, 1968. Article 5 no. 1 provides that jurisdiction in contractual matters is to be in the country of the place of performance. In other words, the competence to sue for the price lies with the court in the country where the debtor has to pay the price. This so-called place of performance is not in itself regulated in this European Convention, but is to be determined by the applicable law. If the applicable law is the Uniform Sales Law, then the Uniform Sales Law determines competence for actions on the price.

b) The largest group of cases, however, deal with non-conformity and the respective remedies of the buyer. It was often an issue of whether there was non-conformity in the first place. But in this regard, the application of the Uniform Sales Law does not pose special problems because non-conformity means in most legal systems that the goods delivered do not conform if they lack the qualities agreed upon by the parties. It is the discrepancy between the agreement of the parties and the qualities of the goods that determines whether the goods conform.[80] Most cases, as mentioned above, deal with the requirement that the buyer must examine the goods and give timely notice of a lack of conformity. This notice must specify the nature of the non-conformity -- a requirement often neglected.[81] Another problem concerned the exact parameters of the obligation to examine the goods, specifically if and under what circumstances packings have to be opened, what kind of tests are expected from a [page 26] buyer, etc.[82] The most problematic issue was, however, the requirement of timely notice.[83] In this regard, the United Nations Uniform Sales Law has alleviated the burden of the buyer by setting a reasonable time instead of notice in short time as under ULIS. And there is also Art. 44 under which the buyer might use a reasonable excuse for not giving timely notice and thereby preserving some of his remedies. Therefore, decisions and reasoning of courts in applying the respective provision of ULIS are not very helpful in interpreting the United Nations Convention.

VI. Evaluation and Summary

If the Convention should be evaluated, it would be unfair to its drafters to point out this or that provision which contains solutions that can be disputed. I think it was the serious aim of most delegations to find the best solution possible and not to defend rules of their respective domestic laws. But sometimes compromises were unavoidable due in particular to the need to faciltate acceptance by those states who regard themselves mostly as the countries of buyers of industrial goods and exporters of commodities. For these countries, the provisions on notice and loss of remedies for failure to give timely notice of non-confirmity were especially troublesome. By way of compromise, Art. 44 of the CISG, as mentioned above, allows for an excuse for the failure to give timely notice and as such leaves the buyer with the remedy of price reduction and a restricted remedy for damages. This was a concession to certain states who said that their merchants could not live with the provisions on notice and the loss of all remedies in case of failure to give timely notice. On the other hand, this concession was the price for keeping the absolute exclusion of all claims after two years when the buyer did not give notice at all, whether or not the defects were discoverable during that time.[84] It is yet to be seen whether the reasonable excuse for failure to give the required notice will cause difficulties because of its vagueness and may be open to an interpretation favourable to buyers in certain countries. It has rightly been pointed out by a German legal writer, however, that the excuse of Art. 44 would very likely not only [page 27] be used by buyers in developing countries but by German merchants as well.[85] For, in analyzing cases decided under ULIS, it is striking to find that of about 300 cases more than 60 were concerned with the notice requirement and buyers who allegedly did not meet these requirements. Notice and its requirements, in other words, are difficult to meet even by merchants in countries whose legal systems require notice in case of non-conformity and who, therefore, should be familiar with this procedure.

Another compromise which may be judged as regrettable, was found in regard to interest rate in Art. 78. Because the delegates could not agree on the yardstick for the interest rate and whether it should be taken from the creditor's or the debtor's country, Art. 78 CISG states only the principle obligation to pay interest and is silent as to the details of the interest rate.[86] This means that private international law has to be referred to in order to determine the law governing the question of interest rate. But regardless of these compromises which can be criticized, an overall evaluation of the Convention and its merits for practitioners has to take into account a point which so far was slightly neglected. When lawyers from different countries negotiate or deal with conflicts arising out of an international sales contract, one of the main problems that frequently presents itself is that it is very difficult to understand the thought processes of the other lawyers as well as the language and the concepts they use. Even if we speak the same language it is very often difficult or impossible to translate the meaning of legal concepts of a certain domestic legal system, let alone to transfer the many interpretations and theories connected with certain legal solutions and concepts. Only for a handful of specialists of comparative law is it possible to have access to more than one legal system and thereby to be able to trace the legal solutions for a given issue outside their own turf. With the Uniform Sales Law there is a chance that for the first time since the medieval ages, when Roman law equipped most continental lawyers with their conceptual tools, that we not only have a common language but also common legal concepts to circumscribe the decisive issues. As J. Hellner has said, the Uniform Sales Law provides us with a legal lingua franca.[87] Even if the parties are in disagreement over whether a fundamental breach of contract occurred, they know what kind of problem is at hand. The Uniform Sales Law, therefore, may be at least helping us to better understand on what points we really disagree.[page 28]


* Dr. jur. ord. Professor Albert-Ludwigs-Universität Freiburg i. Breisgau, Director of the Institute of Foreign and Private International Law, Freiburg. President of the German Association of Comparative Law. The following article is based on a paper read to the Law Faculty of the University of Stockholm on Jan. 25, 1991. I have added footnotes and some remarks, but in general preserved the text of the oral lecture.

The bracket phrase page followed by a number is used to identify the page number of the original publication.

1. In particular in Professor Jan Hellner's contributions on which I often relied: Ipso factor avoidance, in: Festgabe Weitnauer, 85 (Berlin 1980): The UN-Convention on International Sales of Goods -- an Outsider's View, in: Festschrift Riesenfeld, 71 (Heidelberg 1983): Das internationale Kaufrecht aus dem Blickwinkel der Gesetzgebungstechnik, ZG 1988, 249; Gap-Filling by Analogy: Art. 7 of the United Nations Sales Convention in its historical context, in: Festskrift Hjerner, 219 (Stockholm 1990); and in Professor Lars Hjerner's article on: The UN Convention on Contracts for the International Sale of Goods, in: Lalive (ed.): International sales of works of art: Geneva Workshop. 11.-13. April 1985, at 545 et seq. (Paris 1985). In my commentary on the provisions on formation of contracts, I also relied on Judge Gunnar Lagergren's articles, e.g., Formation of Contract, in: Honnold (ed.), Unification of the Law Governing International Sale of Goods, at 55 et seq. (Paris 1966): The Uniform Law on Formation of Contracts for the International Sale of Goods. (1966) J.B.L. 22.

2. BGB1, 1989 II, 588.

3. LG Stuttgart RIW 1989, 984: LG München I IPRax 1990, 316; LG Aachen RIW 1990, 491; LG Hamburg RIW 1990, 1015; see also Reinhart, Zum Inkrafftreten des UN-Kaufrechts fur die Bundesrepublik Deutschland. Erste Entscheidungen deutscher Gerichte, IPRax 1990, 289.

4. See BGH NJW 1981. 1156: BGH R1W 1984, 151: OLG Koblenz IPRax 1981, 20.

5. Schlechtriem/Magnus, Internationale Rechtsprechung zu EKG and EAG (Baden-Baden 1987).

6. Herber, Gedanken zum Inkrafttreten des UN-Kaufrechtsübereinkommens, RIW 1987, 340; Schlechtriem, Einheitliches UN-Kaufrecht, JZ 1988, 1037; Magnus, Das UN-Kaufrecht tritt in Kraft!, RabelsZ 51 (1987). 123; Piltz, Internationales Kaufrecht, NJW 1989, 615; Schwenzer, Das UN-Abkommen zum internationalen Warenkauf, NJW 1990. 602; Schlechtriem, Das Wiener Kaufrechtsübereinkommen von 1980 (Convention on the International Sale of Goods). IPRax 1990. 277; Reinhart, supra note 3, at 289.

7. Enderlein/Maskow/Stargardt, Kaufrechtskonvention der UNO (mit Verjährungskonvention) (Berlin 1985); Koller, in: HGB-Großkommentar (eds. Canaris, Schilling, Ulmer), 4th ed. Berlin, New York 1985, Vor 373, 621 - 746; Martiny, in: Münchener Kommentar zum BGB (eds. Rebmann, Säcker), Vol. 7, 2nd ed. München 1990, Art. 28 Anhang II 1-100; Loewe, Internationales Kaufrecht, Wien 1989; v. Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht, München 1990; Reinhart, UN-Kaufrecht Kommentar zum Übereinkommen der Vereinten Nationen vom 11, April 1980 über Verträge über den internationalen Warenkauf, Heidelberg 1991; Herber/Czerwenka, Internationales Kaufrecht, München 1991.

8. The abundance of literature cannot be recorded here, but see M. Will, Internationale Bibliographie zum UN-Kaufrecht, 3rd ed. Köln 1990, who lists about a thousand (!) publications on uniform sales law.

9. BGH NJW 1990, 2065, at 2066: An extension of the seller's warranties in the buyer's standard conditions shall not exceed 2 years.

10. Symposium in Baden bei Wien: Das UNCITRAL-Kaufrecht im Vergleich zum österreichischen Recht. 17-19.4.1983, organised by Abteilung für Unternehmensrecht der Wirtschaftsuniversität Wien; Lausanner Kolloquium v. 19. -20.11.1984; Wiener Übereinkommen von 1980 über den internationalen Warenkauf, organised by Schweizerisches Institut für Rechtsvergleichung; Fachtagung Einheitliches Kaufrecht am. 16/17/2/1987 in Freiburg, organised by Gesellschaft für Rechtsvergleichung, Fachgruppe für vergleichendes Handels-und Wirtschaftsrect: Berner Tagung für die juristische Praxis: "Wiener Kaufrecht", 18, 19.10.1990, organised by Rechtsund Wirtschaftswissenschaftliche Fakultät der Universitat Bern.

11. BGHZ 96, 313.

12. OLG Hamm RIW 1980, 662; OLG Hamburg RIW 1981, 262; OLG Hamm IPRax 1983, 231; OLG Hamm NJW 1984, 1307; OLG Celle IPRax 1985, 284; OLG Koblenz RIW 1986, 459; Herber in: v. Caemmerer Schlechtriem, supra note 7, Art. 6 16; but see OLG Karlsruhe RIW 1978, 544.

13. See Herber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 6 8; Huber, Der UNCITRAL-Entwurg eines Ubereinkommens über internationale Warenkaufvertrage, RabelsZ 43 (1979). 413, at 427; Martiny in: Münchener Kommentar, supra note 7. Art. 28 Anh. II 61; Herber Czerwenka, supra note 7, Art. 6 4; but see Brandner in: Ulmer/Brandner Hensen, AGB-Gesetz (Kommentar), 5th ed. Köln 1987, 10 Nr. 8 AGBG, 6; Hausmann, Stillschweigender Ausschluß der Einheitlichen Kaufgesetze durch Allgemeine Geschaftsbedingungen, RIW 1977, 186, at 194-195; nullity of choice of law-clauses in standard conditions might result in the nullity of the implied exclusion of CISG.

14. Argentina (entry into force 1.1.1988). Australia (1.4.1989), Austria (1.1.1989), Bulgaria (1.8.1991), Byelorussian S.S.R. (1.11.1990), Canada (1.5.1992), Chile (1.3.1991), China (1.1.1988), Czechoslovakia (1.4.1991), Denmark (1.3.1990), Egypt (1.1.1988), Finland (1.1.1989), France (1.1.1988), Germany (1.1.1991), Guinea (1.2.1992), Hungary (1.1.1988), Iraq (1.4.1991), Italy (1.1.1988), Lesotho (1.1.1988), Mexico (1.1.1989), Netherlands (1.1.1992), Norway (1.8.1989), Romania (1.6.1992), Spain (1.8.1991), Sweden (1.1.1989), Switzerland (1.3.1991), Syrian Arab Republic (1.1.1988), United States of America (1.1.1988), Ukrainian S.S.R. (1.2.1991), U.S.S.R. (1.9.1991), Yugoslavia (1.1.1988), Zambia (1.1.1988).

15. Winship, The Scope of the Vienna Convention on International Sales Contracts in: Galston/Smit (eds.). International Sales, Chap. 1. 1-53 (New York 1984); Vékas, Zum persönlichen und räumlichen Anwendungsbereich des UN-Einheitskaufrechts, IPRax 1987, 342; Siehr. Der internationale Anwendungsbereich des UN-Kaufrechts, RabelsZ 52 (1988). 587; B. Czerwenka, Rechtsanwendungsprobleme im internationalen Kaufrecht (Berlin 1988); Punder, Das Einheitliche UN-Kaufrecht-Anwendung kraft kollisionsrechtlicher Verweisung nach Art. 1 Abs. 1 lit. b UN-Kaufrecht, RIW 1990, 869; Herrmann, Anwendungsbereich des Wiener Kaufrechts-Kollisionsrechtliche Probleme, in: Bucher (ed.). Wiener Kaufrecht, 83, at 87 et seq. (Bern 1991); Drobnig, Anwendungsnormen in Übereinkommen zur Vereinheitlichung des Privatrechts, in: Festschrift v. Overbeck, 15 (Bern 1990).

16. See judgements in footnote 3.

17. Schlechtriem in: v. Caemmerer/Schlechtriem, supra note 7, Art. 2 VertragsG 1.

18. This is very often misunderstood. For the opinion that Art. 1(1)(b) is a conflict of laws provision see: Evans in: Bianca/Bonell. Commentary on the International Sales Law, Art. 95 3.2. (Milan 1987); Kindler, Die Anwendungsvoraussetzungen des Wiener Kaufrechtsübereinkommens der Vereinten Nationen im deutsch-italienischen Rechtsverkehr, RIW 1988, 776, at 778; Siehr. supra note 15, at 607; Winship, supra note 15; M. Wey, Der Vertragsabschluß beim internationalen Warenkauf nach UNCITRAL - und schweizerischem Recht, 64-65 (Diss. Basel 1984). But see for the contrary view Loewe, supra note 7, at 22-23; Herber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 1 42 et seq.: Czerwenka, supra note 15, at 158-159; Enderlein/Maskow/Stargardt, supra note 7. Art. 1 6.4, 7; Herber/Czerwenka, supra note 7, Art. 1 19, Art. 95 3; Reinhart, supra note 7, Art. 1 8-10; Vëkás, supra note 15, 342; Piltz, supra note 6, at 620; Pünder, supra note 15, at 871-872; J. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention. 47.5 (2nd ed. Deventer 1991, in apparition).

19. Not allowed under German conflict of law rules, see EGBGB Art. 35 I.

20. See Herber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 6 12; Bonell in: Bianca/Bonell, supra note 18, Art. 6 2.3; J. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 1st ed. Deventer 1982, 76; Reinhart, supra note 7, Art. 6 3-5; B. Czerwenka, supra note 15, at 170-171; Enderlein/Maskow/Stargardt, supra note 7, Art. 6 1.2.

21. See BGHZ 96, 313, 321: OLG Hamm RIW 1980, 662; Herber/Czerwenka, supra note 7, Art. 6 11; Ulmer, in: Ulmer/Brandner/Hensen, supra note 13, 2 AGBG 10 fn. 25; Hausmann, supra note 13, at 186; Bonell, Die Bedeutung der Handelsbräuche im Wiener Kaufrechtsübereinkommen von 1980, östJB1. 1985, 385, at 395.

22. See comments by Herber, in: Bucher (ed.), supra note 15, at 246.

23. The courts didn't decide until now whether standard software is a chose in possesion (90 BGB). For a discussion of the problems see Marly, Die Qualifizierung der Computerprogramme als Sache nach 90 BGB, BB 1991, 432; Junker, 1st Software Ware?, WM 1988, 1217, 1249. The BGH applies the sale of goods rules, including the law of consumer protection "at least" by way of analogy, see BGHZ 102, 135; BGH NJW 1990, 320 (AbzG). This seems to be true even in the case of on-line transmission. BGH NJW 1990, 320; OLG Stuttgart NJW 1989, 2635 (accord: König, Die Qualifizierung von Computerprogrammen als Sachen i. S. des 90 BGB, NJW 1989, 2604). For a survey of precedents of all German courts, see Köhler/Malzer, Rechtsprechungsübersicht zum gesamten DV-Vertragsrecht, CR 1989, 462 (part I), 1084 (part II); Malzer, CR 1991, 203 (part III); Junker. Die Entwicklung des Computervertragsrechts in den Jahren 1988 und 1989, NJW 1990, 1575; see also T. Hoeren, Softwareüberlassung als Sachkauf. Ausgewählte Rechtsprobleme des Erwerbs von Standardsoftware (München 1989). The question of product liability hasn't been decided by the court. The majority of writers accepts the applicability of the new products liability statute (Gesetz über die Haftung für fehlerhafte Produkte, Produkthaftungsgesetz v. 15.12.1989), see, e.g., rolland, Produkthaftungsrecht, 2 ProdHaftG 17 et seq. (Köln 1990); Foerste in: Produkthaftungshandbuch (ed. Graf v. Westphalen), 24, 121 et seq. at 352-353 (München 1989); Kullmann, Produkthaftungsgesetz (Kommentar), 2 ProdHaftG 7 (Berlin 1990); Meier/Wehlau, Produkthaftung des Softwareherstellers. CR 1988, 95; Engel, Produkthaftung für Software, CR 1986, 702; contra: Taschner/Frietsch, Produkthaftungsgesetz und EG-Richtlinie. Art. 6 Richtlinie 28; 2 ProdHaftG 21 et seq. (München 1990); Bauer, Produkthaftung für Software nach geltendem und künftigem deutschen Recht. PH1 1989, 38, 98; Hoeren. Produkthaftung für Software-Zugleich eine kritische Erwiderung auf Bauer (PHI 1989, 38, 98), PHI 1989, 138; Honsell, Standardsoftware und Sachmängelhaftung, Festschrift Pedrazzini, 313, at 320 (Bern 1990).

24. See Herber in: v. Caemmerer/Schlechtriem, supra note 7. Art. 3 8; B. Czerwenka, supra note 15, at 142 et seq.: M. Droste, Der Liefervertrag mit Montageverpflichtung, Heidelberg 1991, at 159, 162 et seq.

25. OLG Stuttgart RIW 1978, 545.

26. OLG Celle RIW 1985, 571.

27. Most legal writers don't distinguish between the "mixed contracts" of Art. 3(2) CISG and other types of contracts, e.g., with elements of sale and lease, see Loewe, supra note 7, at 28-29; Enderlein/Maskow/Stargardt, supra note 7, Art. 3 4; Khoo in: Bianca/Bonell, supra note 18, Art. 3 3.1. According to those who do, application of CISG to the whole contract requires at any rate that the parties intend a single contract, see Herber/Czerwenka, supra note 7, Art. 3 4; P. Schlechtriem, Uniform Sales Law, at 36 (Wien 1986). This can usually be assumed because the parties don't want their contract to be governed by several legal systems, see OLG Stuttgart RIW 1978, 545; OLG Celle IPRax 1985, 284; Herber/Czerwenka, supra note 7, Art. 3 4; see also Herber, in: Dölle, Kommentar zum Einheitlichen Kaufrecht, München 1976, Art. 6 EKG 7; but see P. Schlechtriem, supra at 32. In the case of a single contract these authors want to apply Art. 3(2) by way of analogy: Herber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 3 9; B. Czerwenka, supra note 15, at 146. This means that the preponderant part of the obligations (qualitative/quantitative) is decisive, see B. Czerwenka, supra note 15, at 143; J. Honnold, supra note 20, 59. But in general, it is thought that in these cases the parties would negotiate the conditions of the contract, see Enderlein/Maskow/Stargardt, supra note 7, Art. 3 4; Herber, Anwendungsvoraussetzungen und Anwendungsbereich des Einheitlichen Kaufrechts, in: Schlechtriem (ed.), supra note 27, at 103. For "turnkey contracts" see UNCITRAL-Yearbook (cited as YB) II (1971) 41; VII (1976) 98 2; for Art. 3 in general see Official Records (United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, New York 1981. A/Conf. 97/19, cited as O.R.) at 241-242.

28. Kötz, Rechtsvereinheitlichung-Nutzen, Kosten, Methoden, Ziele, RabelsZ 50 (1986), 1, at 12.

29. BGHZ 94, 195; Graf v. Westphalen, Die Rechtsprechung des BGH zum Leasingvertrag als Umgehungsgeschäft gem. 6 AbzG. WM 1991, 529.

30. LG Marburg 22.4.1982 in: Schlechtriem/Magnus, supra note 5, Art. 2 EAG no. 4.

31. BGHZ 74, 136 et seq. sub II.2.a); see also OLG Hamm 18.10.1982 in: Schlechtriem/Magnus supra note 5, Art. 6 EAG no. 13.

32. See O.R., at 72-73, 85, 89-90, 100, 201, 245-246, 423. This can cause problems in legal systems which construe products liability as a contractual remedy and do not allow concurring actions in tort ("non-cumul") such as French Law, see Niggemann, Die Bedeutung des Inkrafttetens des UN-Kaufrechts für den deutsch-französischen Rechtsverkehr, RIW 1991, 372, at 377.

33. Schlechtriem in: v. Caemmerer/Schlechtriem, supra note 7, Vor Art. 14 3; P. Schlechtriem, supra note 27, at 33.

34. Huber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 46 7; P. Schlechtriem, supra note 27, at 33; see O.R. at 55, Art. 65 4 (Secretariat's Commentary).

35. Accord: Herber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 4 13; Huber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 45 86; Enderlein/Maskow/Stargardt, supra note 7, Art. 4 6; Khoo in: Bianca/Bonell, supra note 18, Art. 4 3.3.5; Reinhart, supra note 7, Art. 45 10; J. Honnold, supra note 20. 240; Schwenzer, supra note 6, at 603; Herber/Czerwenka, supra note 7, Art. 14 13, 22; contra: Bydlinski, Das allgemeine Vertragsrecht, in: Doralt (ed.). Das UNCITRAL-Kaufrecht im Vergleich zum österreichischen Recht, 57, at 84 et seq. (Wien 1985); Ebenroth, Internationale Vertragsgestaltung im Spannungsverhältnis zwischen ABGB. IPR-gesetz und UN-Kaufrecht, östJB1. 1986, 681, at 688; Lessiak, UNCITRAL-Kaufrechts-übereinkommen und Irrtumsanfechtung, östJB1. 1989, 487. For Swiss law see Honsell, Das Übereinkommen über den intenrationalen Warenkauf (Wiener Kaufrecht), Plädoyer 1990, 38, at 39; Wiegand. Die Pflichten des Käufers und die Folgen ihrer Verletzung. in: Bucher (ed.)., supra note 22, at 143; Bucher, Überblick über die Neuerungen des Wiener Kaufrechts; dessen Verhältnis zur Kaufrechtstradition und zum nationalen Recht, in: Bucher (ed.), supra note 18, at 13. As to French law, which in general also allows avoidance for error in addition to remedies for non-conformity, see Niggemann, supra note 32, at 374.

36. Accord: Herber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 4 13; Enderlein/Maskow/Stargardt, supra note 7, Art. 71 2; Reinhart, Zurückbehaltungsrecht und Unsicherheitseinrede nach UN-Kaufrecht im Vergleich zu EKG und BGB, in: Schlechtriem (ed.), supra note 27, at 378; Reinhart, supra note 7, Art. 71 10; Leser in: v. Caemmerer Schlechtriem, supra note 7, Art. 71 16; contra: Lessiak, supra note 35, 487.

37. During the conference some delegates, however, articulated their desire to preserve remedies of avoidance for error under domestic law in such cases, see UNCITRAL-YB IX (1978) 66; 139 8.

38. The first decision of the Supreme Court is reported in: Schlechtriem/Magnus, supra note 5, Art. 84 no. 1; the second decision is discussed by Friedman, Restitution of Profits Gained by Party in Breach of Contract, (1988) 104 L.Q.R. 383.

39. For such cases see Huber, Zur Haftung des Verkäufers wegen positiver Vertragsverletzung, AcP 177 (1977), 281, at 288 et seq.: e.g. RGZ 66, 289; RGZ 125, 76; BGH BB 1953, 992.

40. 3 Nr. 3 Futtermittelgesetz v. 2.7.1975 (BGB1.1.1745); BGH NJW 1989, 707.

41. Schlechtriem, The Borderland of Tort and Contract - Opening a New Frontier, 21 Cornell Int. L.J. 467 (1988).

42. Id.

43. Art. 3 VertragsG.

44. Einigungsvertrag Anlage 1 Kap. III Sachgebiet D Abschnitt III Nr. 5.

45. E.g., Schwenzer, supra note 5, at 603; P. Schlechtriem, supra note 27, at 23.

46. As to the method of gap-filling required under Art. 7(2) CISG and its relation to the traditional method of analogy, see Hellner, Festskrift Hjerner, supra note 1, at 219.

47. Bonell, A Proposal for the Establishment of a "Permanent Editorial Board" for the Vienna Sales Convention, in: UNIDROIT 1988, 241.

48. K. Zweigert/H. Kötz, An Introduction to Comparative Law, Vol. II: The Institutions of Private Law, Amsterdam 1977, at 171-181; A. von Mehren, Encyclopedia of Comparative Law, Tübingen, Den Haag (in preparation). Vol. VII Chap. 9. The Formation of Contracts, 43 et seq.

49. See Date-Bah, Problems of the Unification of International Sales Law from the Standpoint of Developing Countries, in Problems of Unification of International Sales Law. Working Papers submitted to the Colloquium of the International Association of Legal Science (Potsdam, August 1979), New York 1980, 39, at 46-47; P. Schlechtriem, supra note 27, at 41; O.R. at 263, 266.

50. As to the legislative history see Raijski in: Bianca/Bonell, supra note 18, Art. 11 1 P. Schlechtriem, supra note 27, at 44; O.R. at 20, 91-92, 271 et seq.

51. A reservation was made, so far, by Argentina, Byelorussian S.S.R., Chile, Hungary, Ukranian S.S.R., U.S.S.R.

52. Enderlein/Maskow/Stargardt, supra note 7, Art. 96 4; Reinhart, supra note 7, Art. 12 3.

53. Herber in v. Caemmerer/Schlechtriem, supra note 7, Art. 96 3; Herber/Czerwenka, supra note 7, Art. 96 3; Raijska in: Bianca/Bonell, supra note 18, Art. 96 2.2; Wey, supra note 18. 473 et seq.

54. Loewe, supra note 7, Art. 13, at 38; Enderlein/Maskow/Stargardt, supra note 7, Art. 13; Bianca/Bonell/Rajski, supra note 18, Art. 13 3.1; M. Wey, supra note 18, 483 et seq.; Bydlinski, supra note 35, at 83.

55. Bucher, Überblick über die Neuerungen des Wiener Kaufrechts: dessen Verhältnis zur Kaufrechtstradition und zum nationalen Recht, in: Bucher (ed.), supra note 18, at 13; Eörsi in: Bianca/Bonell, supra note 18, Art. 14; Rehbinder, Vertragsschluß nach UN-Kaufrecht im Vergleich zu EAG und BGB, in: Schlechtriem (ed.), supra note 27, at 149, 166; Bydlinski, supra note 35, at 61; M. Wey, supra note 18, 239 et seq., 576 et seq., 727 et seq.,: contra: Huber, supra note 13, at 447 et seq.

56. But see Bucher, Preisvereinbarung als Voraussetzung der Vertragsgültigkeit beim Kauf-Zum angeblichen Widerspruch zwischen Art. 14 und Art. 55 des "Wiener Kaufrechts", in Festschrift Piotet, 371 (Bern 1990), who denies that there is a contradiction by pointing out that Art. 55 has its own field of application, e.g., in cases where a contract is formed without offer and acceptance. For an extensive analysis of the problems of pretium certum see Witz, Der unbestimmte Kaufpreis (Frankfurt 1989).

57. O.R. 288-289; see also UNCITRAL-YB VIII (1977) 82 105, 100 12.

58. Neumayer, Das Wiener Kaufrechtsübereinkommen und die sog, "Battle of Forms", in Festschrift Giger, 501, at 525 (Bern 1989).

59. OLG Hamburg RIW 1982, 435; OLG Hamm 14.11.1983 in: Schlechtriem/Magnus, supra note 5, Art. 8 EKG no. 8; but see OLG Oldenburg 27.4.1982 in: Schlechtriem/Magnus, supra note 5, Art. 8 EKG no. 4; LG Marburg 24.5.1984 in: Schlechtriem/Magnus, supra note 5, Art. 8 EKG no. 14.

60. RGZ 95, 175; BGH NJW 1968, 33; BAG NJW 1989, 2149.

61. Hellner, Festschrift Riesenfeld, supra note 1, at 84 et seq.

62. See Barbier, Was uns reich macht, FAZ 31.12.1990.

63. See the amusing report by Eörsi, A Propos the 1980 Vienna Convention on Contracts for the International Sale of Goods, 31 Am. J. Comp. L. 333, at 340, 344-345 (1983); Schlechtriem in: v. Caemmerer/Schlechtriem, supra note 7, Art. 25 2-3.

64. See VDMA, Abteilung Recht und Wettbewerbsordnung, Das UN-Kaufrecht und seine Bedeutung für Auslandsgeschäfte (Frankfurt 1991).

65. See OLG Hamm 8.12.1980 in: Schlechtriem/Magnus, supra note 5, Art. 26 EKG no. 3 (fashion dresses); OLG Düsseldorf 14.5.1981 in: Schlechtriem/Magnus, supra note 5, Art. 26 EKG no. 4 (shoes and handbags).

66. See OLG Koblenz 10.5.1985 in: Schlechtriem/Magnus, supra note 5, Art. 26 EKG no. 7 (spectacles).

67. See OLG Düsseldorf 20.1.1983 in: Schlechtriem/Magnus, supra note 5, Art. 10 EKG no. 6.

68. See LG Dortmund 23.9.1981 in: Schlechtriem/Magnus, supra note 5, Art. 10 EKG no.4.

69. BGH NJW 82, 2730: The German seller, who acted only as a front for the real seller, had sold 7,000 tons of a chemical product under a certain trade mark. When he had delivered it turned out that the product was forged.

70. But see the critical analysis of Hellner, Ipso facto avoidance, supra note 1, at 85.

71. For the reasons see Date-Bah in: Bianca/Bonell, supra note 18, Art. 26 2.2-2.3 and UNCITRAL-YB 1 (1968-70) 84-85, 184; III (1972) 41-54, 85; IV (1973) 41-42, 61, 67-68, 119-120.

72. As to the remedy of specific performance see J. Honnold, supra note 20, 197 - 198; for American law see S. Williston, A Treatise on the Law of Contracts, 3rd ed. by W.H. Jaeger Vol. 11, 1418 et seq. (Mount Kisco, N.Y. 1968): E.A. Farnsworth, Contracts, at 818 et seq. (Boston 1982); R.S. Summers/R.A. Hillman, Contract and Related Obligation: Theory, Doctrine and Practice, 326 et seq. (St. Paul, Minn. 1987); R.N. Leavell/J.C. Love/G.S. Nelson, Cases and Materials on Equitable Remedies, Restitution and Damages, at 553 et seq. (4th ed., St. Paul, Minn. 1986); for English law see W. Goodhart/G. Jones, in: Halsbury's Laws of England (ed. Lord Hailsham of St. Marylebone), 4th ed., vol. 44 401 et seq. (London 1983); I.C.F. Spry, The Principles of Equitable Remedies, Specific Performance, Injunctions, Rectification and Equitable Damages (London 1990); G.H. Treitel, in: Chitty on Contracts, Vol. 1 (General Principles), Chap. 27 (26th ed. London 1989).

73. See Huber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 28 18. I have to confess, however, that I too have set my foot on the slippery slope of such an interpretation by suggesting that Art. 28 can be invoked in case of impossibility in order to avoid the regrettable result of judgement of specific performance despite an impossibility for which the debtor could excuse himself under Art. 79(1), (2), see P. Schlechtriem, supra note 27, at 62-63. Application of Art. 28, in other words, was meant as a "remedy" against Art. 79(5).

74. Nicholas, The Prerequisites and Extent of Liability for Breach of Contract under the UN-Convention (CISG), in: Schlechtriem (ed.), supra note 27, at 283 et seq.

75. See v. Caemmerer, Das Verschuldensprinzip in rechtsvergleichender Sicht, RabelsZ 42 (1978), 5, at 15-16.

76. See supra note 73.

77. See Honsell, supra note 35, at 43.

78. See Tallon in: Bianca/Bonell, supra note 18, Art. 79 2.7., 3; J. Honnold, supra note 20, 434; Enderlein/Maskow/Stargardt, supra note 7, Art. 79 5; Stoll in: v. Caemmerer/Schlechtriem, supra note 7, Art. 79 36. In Vienna the question was disputed, see O.R. 379 23-30, 408-409, 66-74.

79. See O.R. 379 24-26.

80. OLG Bamberg RIW 1979, 566; OLG Bamberg 9.2.1978 in: Schlechtriem/Magnus, supra note 5, Art. 33 EKG no. 3; OLG Hamm 6.9.1984 in: Schlechtriem/Magnus, supra note 5, Art. 33 EKG no. 16; LG Konstanz 6.12.1979 in: Schlechtriem/Magnus, supra note 5, Art. 33 EKG no. 4.

81. E.g., in OLG Bamberg RIW 1979, 566; OLG Bamberg 23.2.1979 in: Schlechtriem/Magnus supra note 5, Art. 33 EKG no. 3 = Art. 39 EKG no. 12; OLG Hamm 15.10.1979, 17.9.1981, 11.7.1983 in: Schlechtriem/Magnus, supra note 5, Art. 39 nos. 14, 22, 38.

82. BGH NJW 1982, 2730; OLG Hamm 16.2.1981 in: Schlechtriem/Magnus, supra note 5, Art. 39 no. 19; OLG Hamm 29.4.1982 in: Schlechtriem/Magnus, supra note 5, Art. 39 EKG no. 28; LG Siegen 29.1.1986 in: Schlechtriem/Magnus, supra note 5, Art. 39 EKG no. 50.

83. See e.g., BGH NJW 1982, 2730; OLG Köln 29.6.1978 in: Schlechtriem/Magnus, supra note 5, Art. 39 EKG no. 7; OLG Frankfurt 19.7.1978 in: Schlechtriem/Magnus, supra note 5, Art. 39 EKG no. 9; OLG Bamberg RIW 1979, 566; OLG Hamm 17.9.1981, 15.10.1979, 6.5.1982, in: Schlechtriem/Magnus, supra note 5, Art. 40 EKG no. 4, Art. 39 EKG nos. 14, 29; OLG Hamburg 30.12.1980, 3.3.1982 in: Schlechtriem/Magnus, supra note 5, Art. 39 EKG nos. 17, 27; OLG Koblenz 21.1.1983, 23.12.1983, 18.5.1984 in: Schlechtriem/Magnus, supra note 5, Art. 39 EKG nos. 35, 39, 42.

84. O.R. 107-108, 320 et seq., 323-324, 345 et seq.; see Sono in: Bianca/Bonell, supra note 18, Art. 44 1; Huber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 44 4-7; P. Schlechtriem, supra note 27, at 70-71.

85.Huber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 44§9.

86.See the discussion in O.R. 137-138, 173, 223-225, 388-392, 415-419, 429-430.

87.Hellner, Festschrift Riesenfeld, supra note 1, at 76.

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