Reproduced with permission from Juridisk Tidskrift (1991/92) 1-28
Peter Schlechtriem [*]
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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 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. 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. I believe, however, that the provision is not only clear and therefore easy to apply, but also contains a fair and reasonable 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. 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). 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.
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 renvoi, 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.
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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 said that even computer software can fall under the Convention. 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. 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.
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* 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.
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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.
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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).
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