International Law CISG

• CISG was developed by UNCITRAL, signed in 1980 and came into force in 1988.

• CISG is part of the national law of the contracting states and therefore also part of German (civil) law

• If the CISG applies according to its rules, no Private International Law is required anymore to determine the applicable law

• Contrary to the German Civil Code which is written for legal experts, CISG is written using „plain language that refers to things and events for which there are words of common content“ (John Honnold).

1. Art. 1. - 13. : Application an general Provision

   • Application of CISG (Art. 1-6) , General rules on interpretation of declarations of intent, trade customs, form etc. (Art. 7-13)

2. Art. 14. - 24.: Formation of the contract

   • Rules on the conclusion of a contract by offer and acceptance

3. Art. 25. - 88. : Sale of goods

   • General provisions (Art. 25-29), Duties of seller (Art. 30-51), Duties of buyer (Art. 53-65), Passing of risk (Art. 66-70)

4. 89. - 101. : Final Provisions

   • Provisions primarily addressed to states

• Conclusion of the contract (Art. 14-24 CISG)

• Rights and obligations of the buyer and the seller under the contract (Art. 25-88 CISG)

  —> (Art. 4 CISG)

• B2C contracts, Art. 2 a) CISG

• Product liability, Art. 5 CISG

• Transfer of ownership in the sold goods, Art. 4 S. 2 b) CiSG

• Avoidance of the contract due to errors, deceit or duress(Täuschung oder Arglist), Art. 4 s. 2 a) CISG

• Avoidance of the contract due to violation of statutory law or public policy, Art. 4 s. 2 a) CISG

• Interest rate in case of default

  —> These questions need to be answered by national law as determined by Private International Law.

Incorporation of T&Cs into the contract requires that

1. the user refers the other party to the T&Cs. Simply attaching them or printing them on the backside of a document is not sufficient; and

2. the user makes them available. A link is sufficient;

3. The other party agrees to them. This can be done explicitly or by conduct.

   —> These requirements must be met by the acceptance of the offer at the latest.

   —> T&Cs (and the reference to the T&Cs) need to be in the language of the parties‘ negotiations or a trade custom.

   [Doubtful whether universal language, e.g. English, is sufficient]

   —> Choice of law in T&Cs possible but T&Cs need to be incorporated based on CISG rules.

   —> Whether the content of the T&Cs is valid is determined by the applicable national law.

In German law, the "knocked out rule" is the starting point and attention is paid to both T&Cs: Provisions that are contradictory are not applied and gaps are filled according to dispositive (international) law

(1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.

(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.

(3) Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party’s liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.