Is the Vienna Convention on International Sale of Goods too
much Influenced by Civil Law and should it contain a Rule on
the Passing of Property?

von: Benjamin Mahr

TABLE OF CONTENTS

1. INTRODUCTION 3

2. QUESTION PART 1  4

3. PRINCIPLES OF CONTRACT LAW AND THEIR APPLICATION IN THE VIENNA CONVENTION  5

A ARTICLES INFLUENCED BY CIVIL LAW  5

i. The Notion of Consideration  5
ii. The Effectiveness of an Acceptance 5
iii. Specific Performance 6
iv. Granting of an Additional Time Period (“Nachfrist”)  6
v. Reduction of Price  7
vi. Interpretation Rules and Gap-Filling 8

B ARTICLES INFLUENCED BY COMMON LAW 8

i. The Revocability of an Offer 8
ii. The Concept of Delivery  8
iii. The Breach of Contract  9

4. CONCLUSION QUESTION PART 1 9

5. QUESTION PART 2  11

6. WHY IS TRANSFER OF PROPERTY NOT GOVERNED BY CISG?  12

7. DIFFERENT APPROACHES TO THE TRANSFER OF PROPERTY 12

8. CONCLUSION QUESTION PART 2 14

9. REFERENCES  15

1. INTRODUCTION

The Vienna Convention on International Sale of Goods [The Vienna Convention] is by far not the first attempt to harmonize international commercial code – there is a history of efforts to harmonization that goes back to the beginning of the 20th century. In 1930 the International Institute for the Unification of Private Law [UNIDROIT] was created in Europe. It developed its first draft sales law in 1935 and resumed its efforts in 1951 producing a draft commercial code which was circulated until the early 1960’s.1

The first successful intermediate stage was reached, when in 1964 The Hague Conference adopted the Uniform Law for the International Sale of Goods [ULIS] and the Uniform Law for the Formation of Contracts [ULF]. High expectations accompanied the signing of the Hague Convention on Sales, but only a small number of countries ratified the Hague Convention and its application was strictly reduced to these member states. “It was especially disappointing that the Hague Conventions were not ratified by some of the signatory states – such as France and the United States – which had exercised considerable influence on the formulation of their rules.”2

Despite the partial failure of the Hague Conventions international efforts to harmonization of sales law were still going on. In 1966 the United Nations founded The United Nations Commission on International Trade Law [UNCITRAL] which gave top priority to establishing a uniform international trade law. The efforts of a group comprised of 14 nations lead to the first draft text of the United Nations Convention on Contracts for the International Sale of Goods [CISG] which was “deliberated at the eleventh session of UNCITRAL in 1978 in New York” and then circulated “among the governments of UN member states for their opinions and comments”.3 In 1980 CISG was concluded at the Vienna Convention and came into force in 1988. Today almost 60 countries have adopted CISG amongst which are most of the member states of the European Union (not the UK), USA, Canada, Australia and others.4 As CISG is based on ULIS and ULF, the Draft Convention made by the above mentioned work group and the comments and proposals of the 62 participating nations at the Hague Convention, it was certainly influenced by different legal traditions which are in some points irreconcilable. Due to its footing on ULF an ULIS (which were considered to be predominantly of the European civil law tradition), the composition of the initial work group, and the strong Western European influence on the CISG, some lawyers might draw the conclusion that CISG is too much influenced by the principles of civil law rather than by the principles of common law. In order to analyse the verity of this thesis, the general principles on contract law in CISG will, in the following, be examined in matters of their analogy to civil / common law principles. In the second part of the essay, it will be analysed if CISG should contain a rule on the passing of property.

2. QUESTION PART 1

Is the Vienna Convention on International Sales of Goods too much influenced by principles of contract law of civil law countries rather than principles of contract law in common law countries? The question if CISG is too much influenced by the principles of contract law of civil law countries is a rather subjective one and will be definitely answered upon differently by lawyers in relation to their different legal backgrounds. Common law lawyers might be more likely to affirm a major influence of civil law, whereas civil law lawyers might see it different. Moreover, out of the question arises another question. Too much influenced by civil law what for? Too much influenced to be possibly adapted by common law countries? Too much influenced to be understandable and acceptable for a common lawyer? Not being a lawyer (business background) and coming from a civil law country (Germany) I can hardly answer the question if CISG is acceptable from the perspective of a common law lawyer. Therefore I will rather answer the question if CISG is stronger influenced by one of the two main legal traditions (by giving some selective examples) and if so, in which way this might make it unacceptable to one legal tradition or in which way such a stronger influence might be justified.

3. PRINCIPLES OF CONTRACT LAW AND THEIR APPLICATION IN THE VIENNA CONVENTION

A Articles influenced by Civil Law

i. The Notion of Consideration

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1 See Unidroit Homepage <http://www.unidroit.org/english/presentation/main.htm> (20.05.2004).

2 Peter Schlechtriem, Uniform Sales Law – The UN Convention on Contracts for the International Sale of Goods, (1986, Manz) at 17.

3 Id at 18.

4 See UNCITRAL Homepage <http://www.uncitral.org/en-index.htm> (20.05.04).