UN sales law

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Conventions of the
United Nations
on Contracts for the
International Sale of Goods
Short title: UN sales law
Title (engl.): United Nations Convention on Contracts for the International Sale of Goods
Abbreviation: CISG
Date: April 11, 1980
Come into effect: January 1, 1988
Reference: Chapter X Treaty 10 UNTS
(English text) (PDF; 39 kB)
Reference (German): Federal Law Gazette 1989 II 588
Contract type: International treaty
Legal matter: International Law
Private International Law
of Obligations
Signing: 18th
Ratification : 93 Current status (16.01.2020)

Germany: January 1, 1991 (announced October 23, 1990)
GDR: March 1, 1990
Austria: January 1, 1989
Switzerland: March 1, 1991
Please note the note on the applicable contract version .

The UN Sales Convention (UNK; English United Nations Convention on Contracts for the International Sale of Goods , CISG ; French Convention des Nations unies sur les contrats de vente internationale de marchandises , CVIM) of April 11, 1980, also called Vienna Sales Law , is an international agreement on the law applicable to the international sale of goods.

introduction

The normal case for the application of the UN sales law is the purchase of goods between commercial sellers from different contracting states of the UN sales law (see table). The seller and buyer do not have to be merchants or have the nationality of one of the contracting states. The usual place of residence and the place of business are decisive, Art. 1. The UN Sales Convention does not apply to consumer contracts (if the private purpose of the purchase was recognizable to the seller, Art. 2 lit. a).

In the GDR , the UN Sales Convention came into force on March 1, 1990 and continued to apply there after it joined the Federal Republic of Germany ; it came into force throughout the Federal Republic of Germany on January 1, 1991 (announced on October 23, 1990). Austria joined the UN Sales Convention with effect from January 1, 1991, Switzerland with effect from March 1, 1991.

Graphic overview of the applicability of the CISG from a German perspective

According to Art. 1, a sales contract is to be regarded as an international sales contract if the parties to the contract are based in different countries. The place of the contracting parties is decisive, the nationality of the actors is irrelevant. In the case of natural persons , the place of their habitual residence is decisive, while in the case of legal persons, every dependent branch office can be considered as a branch, provided it has a minimum of competencies. The UN sales law also provides for party autonomy and does not require any special form (Art. 11) for the conclusion of a contract. The UN sales law is based neither on uniform contracts nor on an abstraction principle .

With regard to the warranty , the UN sales law also has the customary design rights or legal consequences of withdrawal , reduction and subsequent performance in German law . Germany has not acceded to the UN Convention of June 14, 1974 on the statute of limitations for the international sale of goods .

In deviation from German liability law , as it emerges from the German Civil Code (BGB), the UN sales law regulates the claim for damages in such a way that each contracting party has to pay damages for breaches of contract regardless of their fault. However, only the damage that was foreseeable at the time the contract was concluded is taken into account. Another difference to the BGB is that the liability can be subject to a contractually agreed limitation provided that the quality of the delivery is guaranteed.

History of origin

The forerunners of the United Nations Convention on Contracts for the International Sale of Goods were the Hague Uniform Sales Acts from 1964. These never achieved great importance outside of Western Europe. So they were u. a. never ratified by France and the USA.

As a result, UNCITRAL began to develop a uniform international sales law within the framework of annual conferences with the participation of 62 nations. The final draft was accepted at a final conference in Vienna in 1980, hence the name Vienna Sales Law . The non-binding German version of the UN Sales Convention was developed in 1982 at a conference of the German-speaking countries.

The UN sales law has now been adopted by 93 countries. Only the United Kingdom is missing from Germany's 20 largest trading partners.

Practical meaning

The UN sales law has been ratified and promulgated in Germany. It is therefore part of German civil law and therefore applicable in the event of a choice of law for German law, unless it is specifically excluded. In contract drafting practice, however, the applicability of the UN sales law was initially generally excluded, which considerably limited the practical importance of the UN sales law in its early years.

In recent times, a clear change has been noted, which can be seen, for example, in the fact that the model contracts of many interest groups no longer provide for a general exclusion of the CISG. Background is u. a. that the non-unified German law of obligations (German law of obligations without CISG) by the law of obligations modernization was adjusted significantly from 2002 to the CISG, so that there is now many processes of the UN purchase right find.

content

The CISG is structured as follows:

Part I. Scope and general provisions (Art. 1–13)

Chapter I. Scope (Art. 1–6)

The scope of the CISG is regulated in Chapter I (Art. 1 to 6). Chapter I contains regulations on the scope of application (Art. 1 CISG), exclusions from use (Art. 2 CISG), inclusion of contracts for goods to be manufactured (Art. 3 CISG), the material scope (excluding the validity of contracts or individual provisions, Art . 4 CISG), the exclusion of liability for death or personal injury (Art. 5 CISG) as well as the possibility to exclude the CISG by party agreement, to deviate from it or to change it (Art. 6 CISG).

To the extent that the scope of application of the CISG has been opened up and the Convention contains a regulation for a certain factual issue (which in cases of doubt must first be determined by way of interpretation), it supersedes national law (in Germany in particular the BGB and the HGB ). In this case, the judge of each court in a CISG contracting state is obliged to apply the CISG (unless the parties to the present dispute have agreed to waive the CISG, as permitted by Art. 6 CISG). Through this application, he realizes the application obligation assumed by each contracting state at international law level (John Honnold calls this vividly “the commitment that Contracting States make to each other: We will apply these uniform rules in place of our own domestic law on the assumption that you will do the same. ")

It is undisputed in international jurisprudence (including that of the BGH ) that a contractual choice of law clause in favor of the law of a CISG contracting state (example: “This contract is subject to German law”) does not exclude the UN sales law within the meaning of Art. 6 CISG because the Convention is an integral part of the national law concerned.

Chapter II. General provisions (Articles 7-13)

Chapter II contains general provisions on the interpretation of the Convention and the filling of the gaps (Art. 7), the interpretation of declarations and conduct (Art. 8), commercial customs and practices (Art. 9), establishment (Art. 10), freedom of form (Art. 11 ), Effects of a reservation regarding freedom of form (Art. 12) and the concept of written form (Art. 13).

Interpretation of the UN sales law (Art. 7)

When interpreting the CISG, its international character and the need to promote its uniform application and the maintenance of good faith in international trade must be taken into account (Art. 7, Paragraph 1). According to Article 7, Paragraph 2, the rules of private international law of the lex fori apply to filling in the gaps . Art. 7 CISG also regulates the inclusion of general terms and conditions in UN sales contracts.

Freedom of form for declarations (Art. 11-13)

Under the UN sales law, declarations can be made without form, Art. 11 CISG, regardless of whether certain formal requirements have to be observed according to the national sales law of one of the countries involved. In particular, the parol evidence rule of US law does not apply to CISG contracts .

It should be noted that individual states can make a declaration in accordance with Art. 96 and Art. 12 in order to exclude the freedom of form under Art. 11 CISG. Reserved states are (not limited to): Argentina , Chile , China , Russia , Hungary . However, if the conflict of laws refers to the law of another state, which in turn provides freedom of form, freedom of form applies. If Art. 11 CISG is not applicable due to a reservation under Art. 12 and Art. 96 CISG, a German court would have to apply Art. 11 Para. 1 and Art. 28 Para. 2 EGBGB in the context of the conflict assessment.

If the parties have included a written form clause in their contract, Art. 29 Para. 2 CISG must also be observed.

Part II. Conclusion of the contract (Art. 14–24)

Part II. Deals with questions relating to the conclusion or formation of contracts. Art. 14 defines the concept of the offer, Art. 15 regulates the entry into force of the offer and its withdrawal, Art. 16 the revocation of the offer, Art. 17 the expiry of the offer. Art. 18 defines the term acceptance, Art. 19 regulates how additions, restrictions and other changes to the offer are to be treated, Art. 20 the acceptance period, Art. 21 late acceptance, Art. 22 the withdrawal of acceptance and Art. 23 the time of the conclusion of the contract. Finally, Art. 24 defines the concept of access .

In deviation from the German Civil Code ( §§ 145 ff. BGB : binding to offer), according to Art. 16 Paragraph 1 CISG, an offer can be revoked until the contract is concluded if the revocation is received by the recipient before the latter has sent a declaration of acceptance. However, an offer cannot be revoked if

a) expresses it by setting a fixed deadline for acceptance or in some other way that it is irrevocable, or
b) the recipient could reasonably trust that the offer was irrevocable and that he acted in reliance on the offer (Art. 16 (2) CISG).

Although in the literature it is often referred to as a compromise between civil law and common law , the regulation of Art. 16 CISG has gained no significance in practice: The fact that not a single judgment has become known in which Art. 16 CISG has become relevant is simply due to this together that the fast means of communication that are common today (especially e-mail ) have made offers with long retention periods superfluous.

Part III. Purchase of goods (Art. 25-88)

Chapter I. General provisions (Articles 25-29)

Part III. Chapter I. contains general provisions, such as the definition of the essential breach of contract (Art. 25).

Chapter II. Obligations of the seller (Art. 30–51)

Part III, Chapter II. Regulates the obligations of the seller, namely in Section I. The delivery of the goods and handover of the documents (Art. 31 to 34), in Section II. The conformity of the goods as well as rights or claims of third parties (Art. 35 to 44) and in Section III. Legal remedies by the buyer for breach of contract by the seller (Articles 45 to 50).

Chapter III. Obligations of the buyer (Art. 53-65)

Part III. Chapter III. includes the obligations of the buyer, namely payment of the purchase price and acceptance of the goods (Art. 53). Section I. regulates the payment of the purchase price in Articles 54 to 59, Section II. Article 60 regulates the concept of acceptance and Section III. in Art. 61 to 65 legal remedies of the seller for breach of contract by the buyer.

Chapter IV. Transfer of risk (Art. 66-70)

Part III. Chapter IV regulates the transfer of risk .

Chapter V. Common provisions on the obligations of the seller and the buyer (Art. 71-88)

Part III. Chapter V. contains common provisions for buyers and sellers. Section I. (Articles 71 to 73) deals with the anticipated breach of contract and deals with contracts for successive deliveries. Section II. (Art. 74 to 77) regulates compensation for damages , Section III. (Art. 78) Interest, Section IV. (Art. 79) Exemptions, Section V. (Art. 81 to 84) Effects of Repeal and Section VI. (Art. 85 to 88) the preservation of the goods.

Part IV. Final provisions (Art. 89-101)

Part IV. Contains final provisions. They partly consist of “diplomatic clauses” which are only relevant for the competent authorities of the contracting states, but partly also regulate significant aspects of the contracting state status of individual states, which are thematically closely related to the scope regulations (Part I). They can therefore also be of decisive importance for the practical application of the UN sales law.

Individual evidence

  1. ↑ BGBl 1990 II 1477. Bundesanzeiger Verlag, October 23, 1990, accessed on June 6, 2019 .
  2. ^ Convention on the Limitation Period in the International Sale of Goods. In: https://uncitral.un.org/en/texts/salegoods/ . United Nations Commission On International Trade Law, June 14, 1974, accessed August 8, 2019 .
  3. ↑ Misunderstood sales law - Why is the UN sales law almost always excluded? In: Frankfurter Allgemeine Zeitung. January 6, 2010, accessed August 8, 2019 .
  4. ^ BGBl. 1989 II p. 588.Bundesanzeiger Verlag, July 13, 1989, accessed on August 8, 2019 .
  5. ^ Status: United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG). In: https://uncitral.un.org/en/texts/salegoods/ . United Nations Commission On International Trade Law, accessed August 8, 2019 .
  6. ^ Resolution of the VIII Civil Senate of May 11, 2010 - VIII ZR 212/07. Federal Court of Justice, May 11, 2010, accessed on August 8, 2019 (BGH NJW-RR 2010, 1217; RN: 15).
  7. ↑ Peter Schlechtriem, Ulrich G. Schroeter: International UN Sales Law A study and explanatory book on the United Nations Convention on Contracts for the International Sale of Goods (CISG) . RN: 16th 6th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-154855-0 .
  8. ↑ Peter Schlechtriem, Ulrich G. Schroeter: International UN Sales Law A study and explanatory book on the United Nations Convention on Contracts for the International Sale of Goods (CISG) . RN: 19th 6th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-154855-0 .
  9. ^ John O. Honnold: Uniform Law for International Sales under the 1980 United Nations Convention, 3rd Edition. University of Pennsylvania, 1999, accessed August 8, 2019 .
  10. ^ Judgment of the VIII Civil Senate of October 31, 2001 - VIII ZR 60/01. Federal Court of Justice, October 31, 2001, accessed on August 8, 2019 .

Web links

Wikibooks: UN sales law  - learning and teaching materials
Wiktionary: CISG  - explanations of meanings, word origins, synonyms, translations

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Additional information

bibliography

Online contributions

Institutions and organizations

literature

Comments

  • Wilhelm-Albrecht Achilles: Commentary on the UN Sales Convention (CISG) . Luchterhand 2000, ISBN 3-472-04010-6 .
  • Heinrich Honsell : Commentary on the UN sales law . Springer, Berlin 1997, ISBN 3-540-59347-0 .
  • CISG commentary by Christoph Benicke, Franco Ferrari and Peter Mankowski. In: Munich Commentary on the Commercial Code . Volume 6, Beck, Munich 2004, ISBN 3-406-40056-6 .
  • Peter Schlechtriem / Ingeborg Schwenzer (eds.): Commentary on the Uniform UN Sales Convention (CISG) , 5th edition, CH Beck, Munich 2008, ISBN 3-406-45461-5 .
  • Julius von Staudinger, Ulrich Magnus : Commentary on the civil code with introductory law and subsidiary laws, Vienna UN sales law (CISG) . Gruyter Verlag, 1999, ISBN 3-8059-0920-9 .
  • Wolfgang Witz u. a .: International uniform sales law. Practitioners' comments and drafting of contracts for the CISG . Law and Economics, 2000, ISBN 3-8005-1183-5 .

Monographs

Magazine articles

  • Bonell: UN sales law and the sales law of the Uniform Commercial Code in comparison . In: RabelsZ 58, 1994, p. 20 ff.
  • Daun: Basics of the UN sales law . In: JuS 1997, pp. 811-816, pp. 998-1005
  • Koch: Against the form-based exclusion of the UN Sales Convention , NJW 2000, pp. 910–915.
  • Mankowski: Considerations on the appropriate choice of law in international trade contracts , RIW 2003, pp. 2–15.
  • Piltz, Burghard: New Developments in UN Sales Law (previous article in NJW 2009, 2258), NJW 31/2011, 2261
  • Rösler: Seventy Years of Right to Buy Goods from Ernst Rabel - Work and Reality History . In: RabelsZ 70 (2006), pp. 793-805
  • Schroeter: Present and Future of Uniform Sales Law , RabelsZ 81 (2017), pp. 32–76
  • Stadler: Fundamentals of international contract law . Jura 1997, pp. 506-513.

Jurisprudence