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

excerpt from

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

Peter Schlechtriem [*]

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The Convention is . . . 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 plan 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]

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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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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.

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

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