Reproduced with permission from the Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94
Martin Karollus [*]
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The FRG has been a CISG Member State since January 1, 1991. The FRG adopted the CISG without reservation but made the following declaration concerning Articles 1(1)(b) and 95:
The Government of the Federal Republic of Germany holds the view that Parties to the Convention which have made a declaration under article 95 of the Convention are not to be considered Contracting States within the meaning of subparagraph (1)(b) of article 1 of the Convention. Accordingly, there is no obligation to apply -- and the Federal Republic of Germany assumes no obligation to apply -- this provision when the rules of private international law lead to the application of the law of a Party which has made a declaration to the effect that it will not be bound by subparagraph (1)(b) of article 1 of the Convention. Subject to this observation the Government of the Federal Republic of Germany makes no declaration under article 95 of the Convention.
This declaration was explicitly adopted into German national law. Therefore, a German court may not apply Article 1(1)(b) if, for example, the law of the United States is applicable.
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The CISG entered into force in the FRG on January 1, 1991. For this reason, Part II of the CISG is applicable only to an offer made on or after January 1,1991, and Part III of the CISG is applicable only to a contract concluded on or after January 1, 1991. Consequently, there were few CISG applications under Article 1(1)(a) in 1991 and 1992, but this has changed since 1993.
Nevertheless, in many decisions the CISG was applied to older sales contracts based on Article 1(1)(b). In the absence of a choice of law provision in the contract, the German rules on conflict of laws generally lead to the application of the seller's law. If the seller was from a country which adopted the CISG before 1991 (especially Italy and France), the German courts applied the CISG as part of the seller's law.
However, in one case the court was wrong [OLG Düsseldorf 2 July 1993]. The seller came from Indiana, and the law applicable to the contract was therefore the law of Indiana. The OLG Düsseldorf decided the CISG was applicable, because the United States had been a CISG member since 1988. Unfortunately, the OLG Düsseldorf ignored the fact that the United States had opted out of Article 1(1)(b) by declaration under Article 95.
Generally, the CISG is not dispositive as to whether the courts of a state which has not made a declaration under Article 95 should apply the CISG under Article 1(1)(b) as the domestic law of a nation which has opted out of Article 1(1)(b) by declaration under Article 95. In the FRG, this problem has been solved by national statute. According to Vertragsgesetz Article 2, a German court may not apply Article 1(1)(b) if the conflict of laws analysis requires application of the law of a state which has opted out of Article 1(1)(b) by declaration under Article 95. Therefore, the OLG Düsseldorf incorrectly applied the CISG instead of the domestic law of Indiana (presumably the Uniform Commercial Code). It is perhaps not surprising, however, that the court favored application of the more familiar CISG.
Since the German conflict of laws rules concerning sales contracts lead directly to the substantial law (Sachnormverweisung), the problem of renvoi does not arise in German courts. This is notably different under Austrian law, where the rules on conflict of laws lead primarily to the foreign state's rules on conflict of laws (Gesamtverweisung). As Article 1(1)(b) does not exclude the doctrine of renvoi, one Austrian court has dealt with a complicated renvoi problem between Austrian and Italian law [Bezirksgericht für Handelssachen Wien 20 February 1992].
According to Article 1(1), the CISG applies only to the sale of goods. This term has been interpreted broadly -- all items usually objects of trade are goods under the CISG. Therefore, not only the sale of corporal goods is governed by the CISG, but also the sale of software [OLG Koblenz 17 September 1993].
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* Professor of Law at the University of Bonn, Germany, from 1992 to February 1995. Currently, Professor of Law at the University of Linz, Austria. Address: Institut für Handels-und Wertpapierrecht, Universität Linz, A-4040 Linz-Auhof, Austria, Europe.
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4. United Nations Convention on Contracts for the International Sale of Goods, United Nations Conference on Contracts for the International Sale of Goods, at 178, U.N. Doc. A/CONF.97/18, Annex I (1981) (opened for signature Apr. 11, 1980) [hereinafter CISG or Convention].
5. Rolf Herber & Beate Czerwenka, Internationales Kaufrecht 11 n.3 (1991).
6. See Vertragsgesetz [VertragsG] art. 2. This statute was enacted in order to adopt the CISG into German Law. It also contains additional rules concerning the application of Article 1(1)(b), id., and the 1imitation period for remedies following non-conforming goods. Id. art. 3.
7. But see infra part III.1.
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60. CISG, supra note 4, art. 100(1).
61. Id. art. 100(2).
62. For decisions applying the CISG under Article 1(1)(a), see Judgment of May 14, 1993, LG Aachen, 1993 RIW 760; Judgment of Jan. 18, 1994, OLG Frankfurt am Main, 1994 RIW 240; Judgment of Apr. 20, 1994, OLG Frankfurt am Main, 1994 RIW 593; Judgment of July 13, 1994, LG Frankfurt am Main, 1994 NJW-RR 1264; Judgment of Mar. 2, 1994, OLG München, 1994 RIW 595. See also Judgment of Feb. 10, 1994, OLG Düsseldorf, 1994 RIW 1050 (the CISG may be applicable under either Article 1(1)(a) or (b)).
63. For decisions applying the CISG under Article 1(1)(b) (seller's country in parentheses), see Judgment of July 3, 1989, LG Münich I, 1990 IPRax 316 (Italy); Judgment of Aug. 31, 1989, LG Stuttgart, 1990 IPRax 317(Italy); Judgment of Apr. 3, 1990, LG Aachen, 1990 RIW 491 (Italy); Judgment of Apr. 24, 1990, AG Oldenburg in Holstein, 1991 IPRax 336 (Italy); Judgment of Sept. 26, 1990, LG Hamburg, 1991 IPRax 400 (Italy); Judgment of Jan. 31, 1991, AG Frankfurt am Main, 1991 IPRax 345 (Italy); Judgment of June 13, 1991, OLG Frankfurt am Main, 1991 RIW 591 (France); Judgment of Aug. 14, 1991, LG Baden-Baden, 1992 RIW 62 (Italy) (implicit application of CISG Article 1(1)(b)); Judgment of Sept. 16, 1991, LG Frankfurt am Main, 1991 RIW 952 (Italy); Judgment of Sept. 17, 1991, OLG Frankfurt am Main, 1991 RIW 950 (Italy); Judgment of Nov. 20, 1992, OLG Karlsruhe, 1993 NJW-RR 1316 (France); Judgment of July 2, 1993, OLG Düsseldorf, 1993 RIW 845 (Indiana, USA); Judgment of Sept. 17, 1993, OLG Koblenz, 1993 RIW 934 (France); Judgment of Jan. 24, 1994, KG Berlin, 1994 RIW 683 (Italy) (same result as application of CISG Article 1(1)(b) using conflict of laws analysis); Judgment of Feb. 10, 1994, OLG Düsseldorf, 1995 RIW 53 (France).
64. See Einführungsgesetz zum Bürgerlichen Gesetzbuch [EGBGB] arts. 27-28.
65. EGBGB art. 28.
66. Judgment of July 2, 1993, OLG Düsseldorf, 1993 RIW 845.
67. 52 Fed. Reg. 6262 (1987).
68. See Malcolm Evans, Article 95, in Commentary on the International Sales Law 654, 656-57 (C.M. Bianca & M.J. Bonell eds., 1987); Honnold, supra note 1, §§ 47-47.5; Karollus, supra note 20, at 31.
69. See supra note 6 and accompanying text.
70. See Peter Schlechtriem, Kurzkommentar, 1993 EWiR 1075.
71. See EGBGB art. 35.
72. Under the doctrine of renvoi, a court in resorting to foreign law adopts rules of foreign law as to conflict of laws, which rules may in turn refer the court back to the laws of the forum.
73. See Karollus, supra note 20, at 33. But see Magnus, supra note 18, at 47.
74. Judgment of Feb. 20, 1992, Bezirksgericht für Handelssachen Wien, 1992 RdW 239. For critical commentary on this case, see Magnus, supra note 11, at 83; Karollus, Rechtsprechung zum UN-Kaufrecht (III), supra note 58.
75. For the position that the CISG is applicable only to physically tangible goods, see Hans Hoyer, Der Anwendungsbereich des UNCITRAL-Einheitskaufrechts, 1988 Wirtschaftsrechtliche Blätter [WBI] 70, 71.
76. Judgment of Sept. 17, 1993, OLG Koblenz, 1993 RIW at 936. See KAROLLUS, supra note 20, at 21; Maximillian Endler & Jan Daub, Internationale Softwareüberlassung und UN-Kaufrecht, 1993 Computer und Recht 601; Frank Diedrich, Anwendbarkeit des Wiener Kaufrechts auf Softwareüberlassungsverträge, 1993 RIW 441.
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