CISG United Nations Convention on Contracts for the International Sale of Goods (1980)
Int. Privat- & Wirtschaftsrecht
- The Convention does not subject the contract of sale to any requirement as to form. In particular, article 11 provides that no written agreement is necessary for the conclusion of the contract. However, if the contract is in writing and it contains a provision requiring any modification or termination by agreement to be in writing, article 29 provides that the contract may not be otherwise modified or terminated by agreement. The only exception is that a party may be precluded by his conduct from asserting such a provision to the extent that the other person has relied on that conduct.
- In order to accommodate those States whose legislation requires contracts of sale to be concluded in or evidenced by writing, article 96 entitles those States to declare that neither article 11 not the exception to article 29 applies where any party to the contract has his place of business in that State.
UNCITRAL Digest CISG, Art. 5
This Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods (CISG) was prepared by the UNCITRAL Secretariat in cooperation with national correspondents and international experts. It may serve as a commentary on the CISG. The following excerpt contains the commentary on Article 5 CISG.
Recommended citation: UNCITRAL, Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods (2016), Art. 5, para. #.
1. Pursuant to this provision, the Convention does not deal with liability for death or personal injury caused by the goods to any person,1 regardless of whether the injured party is the buyer or a third party. Consequently, national law applies to those matters.
2. Article 5 declares that the Convention does not govern liability for death or personal injury “to any person”.2 Although this can be read to exclude a buyer’s claim against the seller for pecuniary loss resulting from the buyer’s liability to third parties for personal injury caused by the goods, one court has applied the Convention to such a claim.3
3. According to part of the case law, any claims for damage to property caused by non-conforming goods are governed by the Convention and do not fall within scope of the article 5 exclusion.4 This excludes any concurrent domestic remedies for damage to property. Consequently, in those cases where the Convention applies, it requires a buyer to notify the seller of the lack of conformity that caused the damage to property in order for the buyer not to lose its claim.5 Where the damage to property is not “caused by the goods”, as where the buyer’s property is damaged by delivery of the goods, the liability issue must be settled on the basis of applicable domestic law.
4. According to some courts, however, the Convention does not deal with concurrent tort claims6 or claims based on the seller’s negligent or fraudulent misrepresentation,7 thus not pre-empting any such claim, but rather leaving it to the applicable domestic law to determine the prerequisites of any such claim.
1 See CLOUT case No. 196 [Handelsgericht des Kantons Zürich, Switzerland, 26 April 1995] (see full text of the decision).
2 CLOUT case No. 196 [Handelsgericht des Kantons Zürich, Switzerland, 26 April 1995].
3 See CLOUT case No. 49 [Oberlandesgericht Düsseldorf, Germany, 2 July 1993] (see full text of the decision).
4 See CLOUT case No. 196 [Handelsgericht des Kantons Zürich, Switzerland, 26 April 1995].
5 See CLOUT case No. 280 [Thüringer Oberlandesgericht, Germany, 26 May 1998]; CLOUT case No. 196 [Handelsgericht des Kantons Zürich, Switzerland, 26 April 1995].
6 U.S. District Court, Eastern District of Arkansas, United States, 23 December 2009, available on the Internet at www.cisg.law.pace.edu; CLOUT Case No. 579 [U.S. Southern District Court for New York, United States, 10 May 2002]; CLOUT case No. 420 [U.S. District Court, Eastern District of Pennsylvania, United States, 29 August 2000].
7 U.S. District Court, Eastern District of Arkansas, United States, 23 December 2009, available on the Internet at www.cisg.law.pace.edu; U.S. District Court, Southern District of Ohio, United States, 26 March 2009, available on the Internet at www.cisg.law.pace.edu; U.S. District Court, Southern District of Ohio, United States, 10 October 2006, available on the Internet at www.cisg.law.pace.edu; CLOUT case No. 579 [U.S. District Court, Southern District of New York, United States, 10 May 2002].
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