Schlechtriem & Schwenzer: Commentary

on the UN Convention on the

International Sale of Goods (CISG) (5th
Edition)
Ingeborg Schwenzer (ed.), Ulrich G
Schroeter (ed.)

https://doi.org/10.1093/law/9780198868
675.001.0001
Published: 2022 Online ISBN:
9780192639257 Print ISBN:

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CHAPTER

Article 1 CISG: Sphere of application 

Ingeborg Schwenzer, Ulrich G Schroeter

https://doi.org/10.1093/law/9780198868675.003.0005 Pages 26–46

Published: October 2022
 Abstract
This chapter concerns Article 1 of the CISG. This article contains the basic rules regarding the applicability of the CISG,
which requires in general that parties in different States concluded a contract for the sale of goods and specifically requires
that the either the parties have their relevant places of business in Contracting States or that the forum’s conflict of laws rules
lead to the law of a Contracting State. The CISG does not distinguish between commercial and other parties and is indifferent
to domestic registration requirements, if such exist. Where the internationality of the contractual relationship was not apparent
from objective circumstances at contract formation, the CISG does not apply. The provision does not define any of the
concepts it mentions (contract of sale, goods, place of business), nor do the other provisions of the CISG requiring

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interpretation in accordance with Article 7.

Keywords: Avoidance of contract, Construction of contract, Applicable law, UN Sales Convention and
choice of law, Goods
Subject: Commercial Law, Contract Law, Private International Law and Conflict of Laws, International
Law, Courts and Procedure
Collection: International Commercial Law

Article 1 CISG

(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States:

(a) when the States are Contracting States; or

(b) when the rules of private international law lead to the application of the law of a Contracting State.

(2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does
not appear either from the contract or from any dealings between, or from information disclosed by, the parties at
any time before or at the conclusion of the contract.

(3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be
taken into consideration in determining the application of this Convention.

FORERUNNERS AND DRAFTS : Article 1(1), (3) and (5) ULIS; Articles 2 and 7 ULIS; Article 1(1), (2) and (3) ULF; Geneva Draft
1
1976, Articles 1 and 6; Vienna Draft 1977, Article 1; New York Draft 1978, Article 1.

p. 27 LITERATURE : Czerwenka, Rechtsanwendungsprobleme im internationalen Kaufrecht (1988); Herrmann, ‘Anwendungsbereich des

Wiener Kaufrechts—Kollisionsrechtliche Probleme’, in Bucher (ed), Wiener Kaufrecht (1991), 83; Horowitz, ‘Revisiting Barter
under the CISG’, (2010/2011) 29 J L & Com 99; Maultzsch, ‘Die Rechtsnatur des Art. 1 Abs. 1 lit. b CISG zwischen internationaler
Abgrenzungsnorm und interner Verteilungsnorm’, FS Schwenzer (2011), 1213; Merkt, ‘Internationaler Unternehmenskauf und
Einheitskaufrecht’, ZVglRWiss 1994, 353; Pünder, ‘Das Einheitliche UN-Kaufrecht—Anwendung kraft kollisionsrechtlicher
Verweisung nach Art. 1 Abs. 1 lit. b UN-Kaufrecht’, RIW 1990, 869; Schlechtriem, ‘Anwendungsvoraussetzungen und
Anwendungsbereich des UN-Übereinkommens über Verträge über den internationalen Warenkauf (CISG)’, AJP 1992, 339; Schmitt,
‘Intangible Goods in Online-Kaufverträgen und der Anwendungsbereich des CISG’, CR 2001, 145; Siehr, ‘Der internationale
Anwendungsbereich des UN-Kaufrechts’, RabelsZ 52 (1988), 587; Vékás, ‘Zum persönlichen und räumlichen Anwendungsbereich
des UN-Einheitskaufrechts’, IPRax 1987, 342.
 I. Overview

Article 1 contains the basic rules regarding the applicability of the CISG, which requires in general that parties in different States 1
concluded a contract for the sale of goods and specifically requires that the either the parties have their relevant places of business in
Contracting States or that the forum’s conflict of laws rules lead to the law of a Contracting State. The CISG does not distinguish
between commercial and other parties and is indifferent to domestic registration requirements, if such exist. Where the
internationality of the contractual relationship was not apparent from objective circumstances at contract formation, the CISG does
not apply. The provision does not define any of the concepts it mentions (contract of sale, goods, place of business), nor do the other
provisions of the CISG requiring interpretation in accordance with Article 7. Contracting States can limit the CISG’s reach beyond

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Contracting States by declaring a reservation under Article 95. Article 1 must further be read in conjunction with Articles 2, 3, and
10.

II. History

The scope of the Hague Sales Law was criticized on essentially two grounds: its application to sales contracts with no connection to 2
2
any Contracting State, and the confusion created by various ‘subjective’ and ‘objective’ tests and alternatives as well as by a
3
number of reservations included to limit the broad sphere of application. With most Contracting States having exercised their option
4 5
to declare a reservation, no uniform application could be achieved.

6 7
p. 28 The UNCITRAL Working Group and UNCITRAL itself decided to make significant changes to the Hague Sales Law, even before 3
8
work on the CISG began, particularly to simplify the rules on the sphere of application and depart from the principle of universal
9 10
application. The location of the parties thereby became the sole criterion for the internationality of the contract. Further, the
11
drafters restricted the Convention’s territorial scope to contracts with parties in different Contracting States (Article 1(1)(a)). The
12
‘universality principle’ only partly survived in Article 1(1)(b) but is subject to the reservation in Article 95.

III. General remarks on Article 1

1. Territorial scope of application

With regard to its territorial scope, the Convention, Article 1(1) requires the parties’ respective—relevant (Article 10)—places of 4
13
business of to be in different States at the time of the conclusion of the contract. For that matter the nationality, in case of entities
the seat, of the parties and whether the contract is civil or commercial is irrelevant (Article 1(3)). This broad rule is, however, subject
to the limitations in subparagraphs (a) and (b) as well as by Article 1(2). The latter provision states that the internationality of the
contract is to be disregarded, where it was not apparent to both parties from the contract or the surrounding circumstances when
14
entering into the contract. It is, however, not required that the parties have actual knowledge of the internationality of the
15
contract.

Under subparagraph (a), the Convention applies to an international sales contract if the States in which the parties have their relevant 5
16
(Article 10) place of business are Contracting States at the time of the conclusion of the contract (Article 100(2)). With 94
17
p. 29 Contracting States at the time of writing, frequently including nine out of the ten largest trade nations in the world, this is the
most important scenario for the applicability of the Convention.

Under subparagraph (b), the Convention also applies even if the relevant places of business are not located in Contracting States, but 6
18
the forum’s conflict of laws rules lead to the application of the law of a Contracting State. While this provision expands the
Convention’s territorial scope beyond Article 1(1)(a), it is still narrower than the Hague Sales Law and also subject to the reservation
19
in Article 95. With the continued growth of the number of Contracting States, subparagraph (b) has already lost and continues to
lose practical relevance, as subparagraph (a) has become even more the standard avenue for the CISG’s applicability.
 2. Subject matter
The subject matter of Article 1(1) is contracts for the sale of goods. Whether the respective contract is civil or commercial is 7
20
irrelevant (Article 1(3)). The Convention limits its subject matter in Article 2 based on the purpose of the relevant sales contract,
the circumstances under which they were concluded or their object. Domestic requirements or definitions of merchants, consumers,
21
entrepreneurs, or any other such categorization have no impact on the applicability of the CISG. This includes registration in a
commercial register that a given State may use to delimit civil and commercial sales.

3. Supplementary rules

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Article 1(1) is a broadly phrased provision with broadly phrased concepts. For clarification, several other provisions supplement 8
Article 1(1). Articles 3, 30, and 53 clarify the notion of ‘contracts of sale’. Article 10, while not defining the notion of ‘place of
business’, addresses the situation where one or more parties have several of them. Articles 4, 5 outline the legal aspects of ‘contracts
of sale’ the Convention addresses. Articles 92, 93, 99 provide further detail on the notion of ‘Contracting State’ and Article 100
defines the temporal scope of the Convention.

IV. General requirements of Article 1(1)

1. Contract of sale

(a) General.
The CISG does not expressly define ‘contracts of sale’. According to Article 30, the seller owes delivery of the goods and 9
documents as well as transfer of title. According to Article 53, the buyer owes payment of the price and taking delivery of the goods.
22
p. 30 ‘Contracts of sale’ in the sense of the CISG are thus reciprocal contracts directed at the exchange of goods against the ‘price’.
Matters relating to the transfer of title, including the transfer itself and reservation of title, are out of the Convention’s scope (Article
4, sentence 2(b)). Therefore, the CISG also covers contracts under which the seller reserves title to the goods until full payment by
the buyer and, at the same time, the buyer is entitled to use the goods before that date. Such contracts remain contracts for the sale of
23 24
goods under the CISG. Likewise, the CISG does not require that the seller is also the manufacturer of the goods. Article 3(1)
shows that the CISG covers generic mass products as well as fully customized goods and that they may still have to be manufactured
at the time of contract conclusion. And, according to Article 3(2), the existence of services obligations as such does not impair the
application of the CISG.

Due to its broad understanding of ‘contracts of sale’, Article 1(1) encompasses most kinds of sales. The Convention expressly 10
mentions contracts for goods to be manufactured (Article 3(1)), contracts involving the carriage of the goods (Articles 31(a), 67),
sales by sample or model (Article 35(2)(c)) or in accordance with specifications made by the buyer (Article 65), and instalment
25
contracts (Article 73). In view of Articles 25, 33, and 49, the CISG also applies to contracts where time is of the essence.

26
The Convention does not expressly mention but typically also govern sales under conditions including the retention of title or time 11
27 28
limits as well as contracts providing for the direct delivery of the goods to the customer of the buyer. The same applies to
29 30 31
p. 31 contracts with pre-emptive options or rights to re-purchase, buyback-sales, counterpurchases, and offsets. Article 3
establishes additional requirements for the application of the CISG to contracts for goods to be manufactured (Article 3(1)) and
mixed contracts (Article 3(2)).
 (b) Barter.
With regard to its obligations the concept of barter strongly resembles sales contracts and, consequently, domestic laws typically 12
32 33
equate barter contracts with sales contracts. Although the suitability of the CISG to such contracts is not contested, the prevailing
opinion nevertheless excludes barter contracts from the Convention, on the grounds that the CISG required sales contracts to be an
34 35
exchange of goods against money. However, barter contracts should not be excluded from the CISG. The term ‘price’ as used in
36
Articles 14(1), sentence 2, 53, 55 does not have to be restricted to money. Rather, both parties can be treated as sellers in regard to
the goods they deliver and as buyers in regard to the goods they receive. It is in any case advisable for parties to expressly stipulate
for the CISG to apply.

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(c) Sales contracts with special financing agreements.
Whether the obligations set out in Articles 30, 53 form the essential part of a contract can, however, be particularly doubtful, where 13
the purchase of the goods is intertwined with special financing agreements. Typical examples of such contracts include hire-
purchase-agreements, leasing-contracts, or sale-and-lease-back-contracts. In analogy to Article 3(2), the decisive criterion for the
classification of these agreements is the weight of the purchase part in the particular case. Where the preponderant part of the
37
obligations agreed upon by the parties relates to the financing and use of the goods, the Convention is not applicable.

Hire-purchase-agreements fall into the scope of the CISG where the economic result of the contract is the final acquisition of the 14
38
p. 32 goods by the buyer or where the value of the use of the goods is completely exhausted at the end of the contract duration. Save
for exceptional circumstances in a particular case, operating and financial leasing-contracts will typically be excluded from the
39
CISG, as the preponderant part of the obligation is to make the use of the goods available to the lessee. This is also supported by
40
the fact that meanwhile specific rules for leasing contracts have been developed. However, the contractual relationship between the
41
seller and the lessor may indeed be governed by the CISG. The same applies to the sales contract in a sale-and-lease-back
42
transaction, as this consists of two legally distinct transactions.

(d) Framework contracts.

43
Distributorship, dealership, agency, joint venture, or franchise contracts are excluded from the scope of the CISG. That being said, 15
where a framework contract already specifies the sales obligations of the parties and the parties intend these obligations to form the
44
main part of the contract, the CISG applies. Even where the framework contract as such is not within the scope of the CISG, the
Convention governs the individual sales contracts concluded within that framework. Where the framework contract already contains
specific terms (eg for the sales contracts to be concluded by ordering the goods, or as to price per unit, warranties, particulars of
shipment, jurisdiction, and arbitration clauses, and the like), the CISG covers the individual supply orders by which the buyer calls
45
p. 33 for the goods to be delivered. In such case, the terms of the respective sales contracts flow from the sales-related terms of the
framework agreement, which as such still remains outside of the CISG.

(e) Modification and avoidance agreements.

46
Agreements to modify, avoid or change in any other way the initial sales contract are subject to the CISG (Articles 14–24, 29). 16
 2. Goods

(a) General.
47 48
The notion of ‘goods’ must be interpreted autonomously. The guiding principle should be, whether the rules on non-conformity 17
(Articles 35 et seq) are appropriate regarding the object of the contract in question. This criterion allows for a broad understanding of
49
the notion of ‘goods’ so as to cover all objects—new or used —which form the subject-matter of commercial sales contracts and
50
those which the drafters of the Convention could not have foreseen. Article 2(d)–(f) excludes certain items from the Convention’s
51
scope. However, these exclusions should not be read as a negative definition of the notion of ‘goods’. The reason for these
exclusions is not that these items necessarily would not qualify as ‘goods’ under the Convention, there were other reservations to

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having these items within the scope of the CISG. Even where domestic law would regard certain items as extra commercium or trade
52
with them is otherwise restricted, they remain ‘goods’ in the sense of Article 1. Contracts for such goods may, however, be invalid
53
under the applicable domestic law. The CISG, however, is indifferent to such domestic distinctions which are often based on
public moral considerations that can hardly be generalized for 94 Contracting States. Against this background ‘goods’ are first of all
54 55 56
moveable (at the time of delivery), tangible objects, which may include entire production plants. This includes livestock,
57 58
human organs, artificial limbs, cultural items, and pharmaceuticals.

p. 34 Although it is not always necessary that goods be corporeal, they must be moveable at the time of delivery. It is sufficient for them to 18
59
become moveable as a result of the sale (for example, minerals or growing crops ) or that, although intended by the buyer to be
60
subsequently inseparably attached to real estate, they are nevertheless moveable at the date of delivery. However, the position is
different if the contract is for the—mere—construction of a fixture (eg a building or a bridge).

(b) So ware.
The CISG covers contracts for software, where the software is permanently transferred to the other party in all respects except for 19
61
the copyright and restrictions to its use by third parties and becoming part of the other party’s property. The CISG does not apply
to agreements on the mere temporary use against (recurring) payment of royalties, even if such agreements automatically renew at
62
end of the duration or if not terminated within a certain time period before expiry of the agreement’s duration. In the former case,
the situation is comparable to the sale of a machine (or car, or mobile phone, etc.), where the seller retains the intellectual property
63
rights necessary for the designing, developing, manufacturing, and operating of a special machine (patents, etc). It is irrelevant
64
whether the software is standard software, software adjusted to the customer’s needs, or fully customized software. Article 3(1)
makes clear that such distinction—often found in domestic law to delimit sales contracts from work contracts—does not apply under
the CISG, where Article 3(1) relies on the parties’ contributions of materials necessary for the production, rather than the
65
individuality of the goods. As in the case of other goods to be manufactured, the ‘services’ (work, etc) necessary for the
66
manufacture of the goods are irrelevant. In practice, therefore, the (only) true question will be whether the recipient is placed in a
67
legal position that warrants considering it as a buyer. The actual yardstick is therefore Article 30 and the requirement of an
p. 35 ‘exchange’. The more permanent the recipient’s retention of the software and the greater its discretion in using the software, the
more appropriate is the application of the CISG. The mode in which software is delivered (eg via disc or electronically via the
68
internet) is also irrelevant. Provisions of the CISG initially tailored to the handling of tangible objects, eg in regard to the transfer
69
of risk (Articles 66–70), preservation of goods (Articles 85, 86) have to and can easily be adapted accordingly. In many cases, the
seller may be contractually obliged to render further services, eg instructing the buyer or its employees. The CISG remains
applicable also in these cases unless the services to be rendered form the ‘preponderant part’ (Article 3(2)) of the seller’s
70
obligations.
 (c) Know-how, etc.
71
On the other hand, the sale of ‘know-how’ does not fall under the CISG—it has no link whatsoever to the notion of ‘goods’. A 20
contract to conduct a ‘market research study’ is not about ‘goods’ even if it is ‘materialized’, ie printed on paper to be handed over to
72
the customer. The true object of the contract is the intellectual work specifically provided to the buyer, not the form in which it is
presented. Conversely, contracts for the sale of books are within the scope of the CISG, even though their primary value does not lie
in the paper on which they have been printed (the quality of the content may of course suggest otherwise), as it is not the writing as
such that is sold to the recipient and the author does not write the book specifically for the particular buyer as a kind of service.

(d) Documentary sales.

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The CISG also governs documentary sales, that is where the buyer purchases the goods as represented in a document of title (bill of 21
73
lading, warehouse receipt).

(e) Companies.
74
The sale of a complete business undertaking does not fall under the CISG. This is obvious for share deals and sales of partnership 22
interests which Article 2(d) excludes from the scope of the Convention. Matters may be different for asset deals, if the assets of the
75
company consist only of movables like machines, rolling stock, raw materials, etc. Even if, as a matter of principle, the CISG
p. 36 could apply to asset deals, it would be excluded in the majority of cases, as real estate and/or rights usually make up the major
part of the subject-matter of the sale; moreover, goodwill and other intangibles such as patents, copyrights, etc will also play a
76
considerable role.

(f) Rights.
The Convention does not cover the sale of rights. However, as Articles 41, 42 demonstrate, the mere fact that items are subject to 23
and/or encumbered by property or intellectual property rights and may therefore not be in conformity with the contract does not
change their character as goods. That being said, claims, licences, patents, copyrights, broadcasting time, tickets for events, etc are
77
not ‘goods’ in the sense of Article 1. On the other hand, machines operating under patented processes are ‘goods’.

3. Places of business
The applicability of the CISG depends on the internationality of the contract (see on this issue paragraphs 26, 27 below). This in turn 24
78
depends on the ‘places of business’ of the parties. The Convention does not define this term, Article 7(1) mandates an autonomous
79 80
interpretation. Recourse to domestic law is excluded. According to the general view, a ‘place of business’ exists if a party uses it
81
openly to participate in trade and if it displays a certain degree of duration, stability, and independence. Booths at an exhibition or
82
fair are therefore not ‘places of business’. Although there is no presumption in this regard, for corporations this will first of all be
83
the place of its administrative centre. It is, however, not necessary for a place of business to represent the centre of a party’s
84
business activities, ie the management of the undertaking does not have to be carried out from a place of business. On the other
hand, if a party for mere logistical convenience uses some of its offices in a certain place to conduct negotiations and enter into the
85
relevant sales contract, the mere use of these premises for such purpose does not turn them into a place of business. The same
86
p. 37 applies to the location of the server used, if the contract is concluded via the internet. A branch office is generally sufficient for
87
the notion of ‘place of business’ but has to fulfil the mentioned requirements.

Where there are several places of business, Article 10 supplements Article 1(1) and deems relevant the place of business with the 25
closest connection to the contract and its performance (Article 10(a)). This is not necessarily a party’s principal place of business. If
a party is a natural person, its habitual residence is relevant (Article 10(b)).

A place of business with an independent legal personality (for example, a subsidiary company) is not relevant for the purposes of 26
88
Article 10; if the subsidiary company is itself a party to the contract, its own place of business is decisive. Nor does the fact that a
 company has obligations to its holding company alter the fact that the contract is to be attributed solely to the legal entity which has
89
concluded it. Consequently, the CISG also covers contracts between parent companies and their subsidiaries, provided that they
90
have their places of business in different States.

4. Internationality

(a) General.
To satisfy the CISG’s precondition that the relevant contract is international, the parties’ places of business must be in different 27
91

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States. Per Article 1(3) this is not a matter of the parties’ nationality. The internationality requirement is not satisfied if the places
of business (or, if one or both parties have several places of business, the relevant places of business under Article 10(a)) are situated
in the territory of the same State. It is also not satisfied, if the parties are located in the same State but performance is rendered in
another State. Conversely, where a third party joins an international sales contract, eg as a second seller, the contract remains within
the scope of the CISG even if the joining third party has its place of business in the same State as the counterparty, as long as the
92
initial two parties have their places of business in different States. The relevant point in time for the internationality of the sales
93
contract is the conclusion of the contract. The burden of proof for the internationality of the contract lies with the party claiming
94
that the CISG applies.

p. 38 (b) Agency.
Internationality of the sales contract may be doubtful in case the parties use agents. The relevant place of business is not that of the 28
agent but that of the party bound by the acts of the agent. The principal-agent relationship and whether the acts of the agent have
95
binding effect on the principal is outside of the scope of the CISG and subject to domestic law. This concerns in particular the
question whether the applicable domestic law accepts undisclosed agency. If not, then no contract may be formed, and even where
subsequent ratification is possible, the internationality may not have been recognizable to the counterparty which then may render
the CISG inapplicable under Article 1(2). If the CISG remains applicable, the principal’s place of business will only be relevant if
96
the agent has disclosed the principal-agent relationship. If the applicable domestic law accepts undisclosed agency to bind the
principal and the counterparty, it is also the principal’s place of business which is decisive. Again, the CISG may then however be
97
inapplicable due to Article 1(2). In all cases where the applicable law in case of undisclosed agency binds the agent to the contract,
the agent’s place of business is decisive. If the applicable domestic law binds the principal as well as the agent, they should be
regarded as one party with several places of business and Article 10 be applied. Comparable situations may arise where wholly
owned subsidiaries enter into a sales contract but in fact the parent company is the true party to the contract, in which case,
98
internationality depends on the place of business of the parent.

V. Specific requirements of Article 1(1)(a): Contracting States

Under Article 1(1)(a) the CISG applies, if the general requirements of Article 1(1) are satisfied and the (relevant (Article 10)) places 29
of business of the parties are in different Contracting States. A Contracting State is any State which has implemented the CISG by
99
ratification or accession under Articles 91(2), (3) and for which the Convention has entered into force under Articles 99(2), 91(4).
With 94 Contracting States and counting at the time of writing, Article 1(1)(a) is now the typical avenue leading the application of
the CISG.

In the special situations set forth in Articles 92(2) and 93(3) a State is not considered a Contracting State, even if it has ratified or 30
100
acceded to the CISG and the Convention has entered into force for such State: if a Contracting State declares that Part II or Part
101
p. 39 III of the CISG is not binding on it, it is to that extent not a Contracting State; if it declares that the Convention is not to apply
to certain of its territorial units, those units do not have the status of Contracting States. Article 94 contains a substantially similar
102
limitation but within its scope does not deprive a State of its status as a Contracting State. Instead, Article 94 provides that States
 with the same or similar sale of goods legislation may exclude the application of the CISG as between themselves but remain
Contracting States.

VI. Specific requirements of Article 1(1)(b): Conflict of laws rules lead to

the law of a Contracting State

1. General

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The Convention also applies where the parties do not have their places of business in different Contracting States, but the general 31
requirements of Article 1(1) are satisfied and the rules of private international law of the forum lead to the application of the law of a
103
Contracting State (Article 1(1)(b)). As a result, the CISG could theoretically apply where none of the parties has its place of
business in a Contracting State and also the forum state is not a Contracting State or an arbitral tribunal, if, however, the forum’s
rules of private international law lead to the application of the law of a Contracting State, for instance, because the parties chose the
104
law of a Contracting State in their contract. The CISG then applies as part of that Contracting State’s law.

With 95 Contracting States and counting at the time of writing, Article 1(1)(b) has lost most of its practical relevance in state court 32
litigation. Where the Convention is applicable in state court, it will now typically be because of Article 1(1)(a). In arbitration Article
1(1)(b) has greater practical relevance, as arbitral tribunals determine the applicable law based on their arbitration rules and the
applicable lex arbitri. If this leads to the law of a Contracting State, typically because the parties have chosen such law, while not
both parties have their relevant place of business in Contracting States, it is Article 1(1)(b) as part of the applicable Contracting
105
State’s law that directs the arbitral tribunal to apply the CISG. While Article 1(1)(b) thus potentially extends the Convention’s
106
p. 40 scope beyond Contracting States in a given case, this happens only in situation where the parties’ contract would have been
governed by a law that is not the law of either party’s State anyway. In such situation the CISG will be the reasonable solution as it is
easily accessible for both parties.

2. Mechanism of Article 1(1)(b)

Article 1(1)(b) applies in different ways, depending on whether the forum is in a Contracting State or a non-Contracting State. For 33
arbitral tribunals the situation is the same as for courts in non-Contracting States. Courts in Contracting States must examine the
applicability of the CISG to a given case ex officio as it is part of the forum State’s law and not doing so would violate public
international law. If the CISG is not applicable via Article 1(1)(a) because at least one party does not have its relevant (Article 10)
107 108
place of business in a Contracting State, the court must then move to Article 1(1)(b). This second step does not occur where
109
the forum State has declared a reservation under Article 95. If the forum State has not declared a reservation under Article 95, the
court turns to its conflict of laws rules (rules of private international law). If these rules direct the court to the law of a Contracting
110
State, the Convention applies, even if that Contracting State has declared a reservation under Article 95. This latter aspect
immediately follows from the wording of Article 1(1) which refers to ‘this Convention’ rather than ‘the Convention as enacted by
111
the State to which the rules of private international law refer’. If the forum State itself is a non-Contracting State or an arbitral
tribunal has jurisdiction, the CISG may be applicable on account of Article 1(1)(b) if the law which the court or arbitral tribunal is
referred to is that of a CISG Contracting State. The Convention then applies as part of that Contracting State’s law.

The conflict of laws rules of the forum can be purely domestic rules or uniform rules enacted pursuant to international conventions 34
such as the 1955 Hague Convention on the Law Applicable to Contracts for the International Sale of Goods, the 1980 Rome
112
Convention on the Law Applicable to Contractual Obligations, or now the Rome I Regulation. In case of arbitral tribunals the
p. 41 relevant rules of private international law are the rules on the applicable law set forth in the applicable arbitration rules and the lex
arbitri. For the purposes of Article 1(1)(b) it is irrelevant whether, under the applicable conflict of laws rules, a subjective test
113
(choice of law clause in the contract) or an objective test, eg closest connection test, leads to the law of a Contracting State. If the
114
conflict of laws rules of the forum prohibit or restrict a choice of law by the parties, their choice of the law of a Contracting State
115
may be ineffective and, therefore, may not provide an avenue to the application of the CISG via Article 1(1)(b).
 The conflict of laws rules of the forum can also result in a dépeçage, ie a splitting of the applicable law(s), if, for example, in regard 35
to the formation of the contract they refer to a non-Contracting State whereas in regard to rights and remedies under the sales
116
contract to a Contracting State (or vice versa). If the conflict of laws rules of the Contracting State contain a norm that refers back
to the forum State or to the law of a third State, this renvoi should not be followed, because the relevant rule is superseded by Article
117
1(1)(b); this provision to this extent operates as a conflict of laws rule preventing a renvoi.

Once the law of a Contracting State is deemed applicable, it is up to this State to decide which of its (perhaps) several sales laws 36
apply—a decision it has made in favour of the CISG by enacting the Convention and its Article 1(1)(b). Within the domestic law of
a CISG Contracting State, Article 1(1)(b) thus has the function of allocating sales issues to the CISG like (other) norms allocating
118
sales matters to a special commercial code or consumer regulations, etc. If the forum State is a CISG Contracting State, the

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Convention does not apply as foreign law, but as law created by an international convention and enacted by the forum State as its
119
own law. If the forum State is not a CISG Contracting State and the conflict of laws rules of the forum State refer to the law of a
Contracting State, the CISG applies as foreign law on the basis of Article 1(1)(b) as the law of that Contracting State.

p. 42 3. Reservation under Article 95

(a) General.
Article 1(1)(b) extends the applicability of the CISG considerably which had raised concerns of an ‘imperialistic claim’ of the 37
120
Convention (and its drafters) during the preparation of the Convention. This led to the introduction of Article 95, permitting
States to declare that they ‘will not be bound by Article 1(1)(b)’. Few States have ever made use of that reservation and with the
continuously diminishing relevance of Article 1(1)(b), the practical relevance of Article 95 continuously subsides as well.

(b) E ects.
The effects of Article 95 are controversial. The core principle, however, is clear and uncontroversial. A court in a Contracting State 38
that has declared a reservation under Article 95 generally applies the CISG only if both parties have their places of business in CISG
121
Contracting States, ie if the requirements of Article 1(1)(a) are met. If the requirements of Article 1(1)(a) are not satisfied because
at least one party does not have its relevant (Article 10) place of business in a Contracting State, the court turns to its conflict of laws
rules (not at the direction of Article 1(1)(b) due to Article 95, but because it must do so anyway to determine the applicable law). It
is uncontroversial that if the court’s conflict of laws rules then refer the court to the law of a Contracting State that has not declared a
122
reservation under Article 95, the CISG applies.

There is controversy, however, whether a court in a CISG Contracting State that has not declared a reservation under Article 95 has 39
to apply the Convention, if Article 1(1)(a) is not satisfied and the court’s conflict of laws rules direct the court to the law of a
Contracting State that has made such a declaration. The question arises in the rare situation where a court in a non-reserving
Contracting State has jurisdiction over a dispute between a party with its relevant place of business in a Contracting State that has
declared a reservation and a party with its relevant place of business in a non-Contracting State (for instance, a Swiss state court
having jurisdiction over a dispute between an US party and a UK party). In this case the CISG is not applicable on account of Article
1(1)(a). The court therefore has to apply its conflict of laws rules and may thereby be referred to the law of the party located in the
reservation State. As this State is in principle a Contracting State, the requirements of Article 1(1)(b) are satisfied. A strong view is
that the court still may not apply the CISG but must apply the same sales law that a court in the reservation State would apply to the
123 124
case. The preferable and now prevailing view is to apply the Convention. Article 95 only refers to the Contracting State
p. 43 making the declaration (‘it’) and—contrary to Articles 92(2), 93(3), and 94(2)—does not indicate any effect on the reserving
125
State’s status as Contracting State. Moreover Article 1(1)(b) obliges the court to apply ‘this Convention’ and not the law of the
126
Contracting State to which it is referred.
 VII. Article 1(2): CISG applies only if the internationality of the contract
is apparent

1. General
The CISG requires no additional objective connecting factors, and—as regards the requirement that the contract be international— 40
merely requires that the parties have their relevant (Article 10) places of business in different States. Article 1(2) limits both
127
subparagraphs of Article 1(1): if the fact that the place of business of the respective counterparty is in a different State is not
128
apparent at the time of the formation of the contract, the factual internationality of the contract is to be disregarded. The contract

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129
of sale is then subject to domestic sales law. Article 1(2) is by and large irrelevant in practice. Most cases that would fall within
its scope will concern goods bought for personal, family or household use which Article 2(a) excludes from the CISG anyway.

Even though Article 1(2) only references ‘place of business’, it is sufficient for a foreign connection to be discernible from a 41
130
‘habitual residence’. If the other party to the contract has no place of business but only a habitual residence (this will be the case
for individuals contracting for professional purposes), Article 10(b) provides that for the purposes of Article 1(1) the habitual
residence is relevant, not the place of business. The counterparty is not expected to correctly assess which of the two concepts is
relevant.

2. Requirements of Article 1(2)

Article 1(2) does not require that the fact that the parties’ places of business are in different States is subjectively discernible for the 42
respective parties. The provision only requires that this fact is apparent from the contract itself, the dealings between the parties and
any information disclosed before or at the time of contracting. This, however, is an objective test. The relevant factor therefore is that
the fact of the relevant place of business being located in different States has not been concealed. It follows from the relationship
p. 44 between rule (Article 1(1)) and exception (Article 1(2)) that the party denying the application of the CISG on the grounds that the
131
internationality of the contract was not apparent must also prove that fact.

132
Whether the fact that the parties’ places of business were in different States was not apparent depends on objective criteria. The 43
133
initially envisaged wording of the provision made reference to knowledge or negligent lack of knowledge. The drafters
134
deliberately dropped this phrasing. If the respective residence of the parties is not ‘apparent’, but one of the parties had
knowledge of that fact, while the other was ignorant and believed that both parties resided in the same State, the Convention does not
135
apply. On the other hand, it is sufficient that the internationality is objectively apparent; subjective knowledge of the parties is not
136 137
required. In no event is it necessary that the parties were aware of the Convention’s applicability as such.

138
Article 1(2) sets out a non-exhaustive list of three sources from which the international nature of the contract must be apparent. 44
First, previous contacts may point to the different place of business. This does not require previous sales contracts of sale; any
139 140
correspondence suffices. Second, the foreign connection may be apparent from dealings between the parties. That includes not
141
only correspondence and direct contractual declarations, but also the entire appearance of the other party or. Finally, regard must
142
p. 45 be had to information disclosed by the other party to the contract. It is not necessary for it to refer expressly to the foreign
143
connection; the position is the same as that for dealings between the parties. Information provided by the respective counterparty
144
also includes advertisements.

145
Generally speaking, Article 1(2) will have to be interpreted narrowly. Its purpose is to prevent the application of the CISG in 45
146
circumstances where one party could in no way have realized the internationality of the contract. It is thus sufficient that there
147
were indications of the party’s place of business being in a different State, but not necessarily a particular State. Nor is it
necessary for such indications to point to a different Contracting State. It is sufficient that the party concluding the contract could
148
have been aware of its international nature; however, it is not necessary that it was able to foresee the applicability of the CISG.

The most important situation in which the rule will apply is undisclosed agency, ie where the agent concludes a contract in one State 46
149
with another party in that State without disclosing that it is acting on behalf of a principal in a different State. If the domestic law
 applicable to agency acknowledges undisclosed agency and binds the principal rather than the agent, the application of the CISG
depends upon whether or not there were indications that one of the parties to the contract had its place of business in a different
150
State.

VIII. Article 1(3): Nationality of the parties or civil or commercial

character of the parties or of the contract is irrelevant

The irrelevance of nationality avoids difficulties in the case of parties with dual nationality; it also dispenses with the need to 47
151 152

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determine the ‘nationality’ of a legal entity such as a corporation. This part of Article 1(3) does not cause any problems.

The scope of special rules for merchants is not uniformly defined internationally and the distinction between commercial and 48
153
p. 46 ‘private’ contracts and special rules for merchants is unknown in a number of legal systems. Due to Article 1(3) the CISG
applies to commercial and non-commercial sales contracts, even though the latter will often be excluded from the scope of the CISG
by Article 2(a).

It follows from the above that, in those cases where the Contracting States distinguish civil and commercial natures of contracts, it is 49
irrelevant for the application of the CISG, whether a contract of sale is classified as falling under general civil law or under
commercial law.

Notes
1 See also Arts 2, 3 Limitation Convention 1974.
2 Cf Dölle/Herber, Art 1 EKG, paras 2, 15; Bianca/Bonell/Jayme, Art 1, note 1.3.
3 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 1.
4 See Dölle/Herber, Einf vor Arts 1–8 EKG, para 4.
5 On the problems caused by the reservations, cf Dölle/Herber, Einf vor Arts 1–8 EKG, paras 3 et seq. Cf also Honnold, Art
1, para 40.
6 UNCITRAL YB I (1968–1970), p 178, nos 10 et seq; p 180, nos 30 et seq; UNCITRAL YB II (1971), pp 51 et seq, nos 11 et seq;
p 82 Annex II, nos 1 et seq.
7 UNCITRAL YB I (1968–1970), pp 132 et seq, nos 22 et seq, nos 50 et seq; UNCITRAL YB II (1971), pp 18 et seq, nos 57 et seq.
8 UNCITRAL YB I (1968–1970), p 164, nos 25 et seq; p 167, nos 58 et seq; pp 178 et seq, no 14.
9 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, paras 2, 3; Winship, Scope, pp 1–20.
10 UNCITRAL YB II (1971), p 52, nos 12 et seq, in particular nos 14 et seq. Criticism is expressed by Volken, Scope, pp 25–7.
Contra MüKoBGB/Westermann, 6th edn, Art 1, para 5 who believes that the internationality of the contract requires the
contract to be about a sale of goods, rightly criticized by Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1,
para 40.
11 See in more detail Staudinger/Magnus, Art 1, paras 7–11.
12 The introduction of Art 1(1)(b) CISG was heavily criticized, see eg the statement by Herber O R, pp 236, 237, nos 9–12
who stated that it was such mechanism that had caused reluctance amongst States to accede to the Hague Sales Law
and that subparagraph (b) would have to be expected to raise serious problems of interpretation and application.
Consequently, he suggested to delete the rule. The subsequent German proposal was, however, rejected with 25:7
votes and 10 abstentions (O R, p 83). Cf also Bianca/Bonell/Jayme, Art 1, note 1.4.
13 See RB Hasselt, 20 September 2005, CISG-online 1496; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1,
para 8; Staudinger/Magnus, Art 1, para 69; Honsell/Siehr, Art 1, para 19.
14 This provision applies to both subparagraphs of Art 1 CISG, see Schlechtriem/Schwenzer/Schroeter
Kommentar/Ferrari, Art 1, para 48; Staudinger/Magnus, Art 1, para 72.
15 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 48; Staudinger/Magnus, Art 1, para 51;
Staudinger/Magnus, Art 1, para 72; MüKoBGB/P Huber, Art 1, para 34; Herber/Czerwenka, Art 1, para 74; but see
Bianca/Bonell/Jayme, Art 1, note 2.4 requiring awareness of the internationality.
16 See in more detail paras 29, 30 below and the comments on Schroeter, Art 100, paras 14 et seq below.
17 The figure depends on whether the UK—a non-Contracting State—makes it into the top ten trading nations in a given
 year. If not, the spot is typically filled by another CISG Contracting State.
18 See in more detail paras 31–36 below.
19 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 5; Bridge, Intʼl Sale of Goods, paras 10.12 et seq.
20 See also paras 47–49 et seq below.
21 Undisputed: see Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 60; Honnold/Flechtner, Art 1, para
48.
22 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 13; Staudinger/Magnus, Art 1, para 14; Winship,
Scope, pp 1–22. In essence, this definition seems to be common ground around the world: see
Schwenzer/Hachem/Kee, para 7.01. This also encompasses States in which property is transferred upon the conclusion
of the contract, such as in France (Art 1583 Cc), because the obligation to transfer property also exists in these States
and the CISG is not concerned with the modalities of the transfer: Art 4, s 2(b) CISG. Cf

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Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 14; Staudinger/Magnus, Art 1, para 14.
23 But see PST Energy 7 Shipping et al v OW Bunker Malta Ltd and others [2015] EWHC 2022 as regards the application of
the SGA 1979.
24 Ct App Seoul, 20 December 2016, CISG-online 4236. The position taken by the defendant in this case on the basis of Art
3(1) is so far o that the existence of this (correct) decision should not be taken as an indication that there could even
be a dispute in this respect.
25 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 20; Staudinger/Magnus, Art 1, para 20. For CIF
contracts see OLG Hamburg, 28 February 1997, CISG-online 261: use of CIF shows that time was of the essence
rendering delay a fundamental breach of contract.
26 See ICC, 7844/1994, CISG-online 567: e ectiveness of contract dependent on whether buyer is awarded sub-contract
by a third party; OLG Schleswig, 29 October 2002, CISG-online 717: final amount of the purchase price dependent on
the price achieved in a resale. See also Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 15;
Staudinger/Magnus, Art 1, para 14. This includes contracts where the e ectiveness of the contract depends on the
buyer being satisfied with the goods received, see Staudinger/Magnus, Art 1, para 21.
27 See Staudinger/Magnus, Art 1, para 14.
28 See for this constellation BGH, 24 March 1999, CISG-online 396: direct delivery of the vine wax sold from the producer
to the buyer. See also OGH, 24 October 1995, CISG-online 166; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari,
Art 1, para 18; Staudinger/Magnus, Art 1, para 18; W Witz/Salger/Lorenz/Lorenz, Art 1, para 6; MüKoBGB/P Huber, Art 1,
para 6; Brunner/Meier/Stacher, Art 2, para 8.
29 See Schroeter, Intro to Arts 14–24, para 22 below; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para
18; Staudinger/Magnus, Art 1, para 18.
30 See MüKoBGB/Gruber, Art 14, para 3; Enderlein/Maskow/Strohbach, Art 1, note 1; Schwenzer/Mohs, IHR 2006, 239, 240.
31 These are usually two legally distinct contracts, see Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para
30.
32 See eg for Afghanistan, Art 1173 Cc; Algeria, Art 415 Cc; Argentina, Art 1356 Cc; Austria, Art 1046 ABGB; Bahrain, Art 450
Cc; Belarus, Art 538(2) Cc; Bolivia, Art 654 Cc; Brazil, Art 533 Cc; Chile, Art 1794 Cc; China, Art 175 Contract Law;
Colombia, Art 1850 Cc; Costa Rica, Art 1100 Cc; Cuba, Art 370 Cc; Czech Republic, § 611 Cc; Ecuador, Art 1760 Cc; Egypt,
Art 485 Cc; El Salvador, Art 1598 Cc; France, Art 1707 Cc; Georgia, Art 523 Cc; Germany, § 480 BGB; Greece, Art 573 Cc;
Guatemala, Art 1853 Cc; Honduras, Art 1606 Cc; Jordan, Art 556 Cc; Kuwait, Art 522 Cc; Latvia, Art 2092 Cc; Lebanon,
Art 503 CO; Libya, Art 475 Cc; Lithuania, Art 6.432(2) Cc; Mexico, Art 2250 Cc; Moldavia, Art 824 Cc; Nicaragua, Art 2536;
Paraguay, Art 756 Cc; Philippines, Art 1641 Cc; Russia, Art 567(2) Cc; South Korea, Art 597 Cc; Spain, Art 1446 Cc;
Switzerland, Art 237 OR; Syria, Art 453 Cc; Taiwan, Art 399 Cc; for the US UCC, see Wheeler v Sunbelt Tool Co, Inc, Ill App,
17 March 1989, 181 Ill App 3d 1088, 1098; Venezuela, Art 1.563 Cc; Vietnam, Art 463(4) Cc; Yemen, Art 585 Cc. The
Islamic Shariʼa law also considers barter contracts to be equal to sales contracts. An express exclusion of the
application of sales provisions to barter contracts can be found in Art 465 of the Iranian Civil Code. Similarly, under
English law, sales contracts require delivery of goods in consideration for money, thus excluding barter transactions
from the sphere of sales law: see Bridge, Intʼl Sale of Goods, para 2.63.
33 Accord from Kröll et al/Mistelis, Art 1, para 30.
34 See Int Ct Russian CCI, 9 March 2004, CISG-online 1184; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1,
para 30 with further references; Winship, Scope, pp 1–24. With doubts, Kröll et al/Mistelis, Art 1, para 30.
35 See also Int Ct Russian CCI, 17 June 2004, CISG-online 1240; CIETAC, 13 June 1989, CISG-online 865; Bridge, Intʼl Sale of
Goods, para 10.21; Bianca/Bonell/Maskow, Art 53, note 2.5; Horowitz, (2010/2011) 29 J L & Com 99, 111 et seq;
Schwenzer/Kee, IHR 2009, 229 et seq; probably also Honnold/Flechtner, Art 1, para 56.1. Cf also Int Ct Ukrainian CCI, 10
October 2003, CISG-online 923: the claim was held to be time-barred based on the 1974 Limitation Convention which
sets out the same requirements as the CISG.
36 Honnold/Flechtner, Art 1, para 56.1; Horowitz, (2010–2011) 29 J L & Com 99, 102. Contra Kröll et al/Mistelis, Art 1, para
30, who appears to equate ʻpriceʼ and ʻmoneyʼ, stating that ʻpriceʼ would have to be read as ʻvalueʼ to include barter
transactions.
37 See Staudinger/Magnus, Art 1, para 33.
38 See MüKoBGB/Westermann, 6th edn, Art 1, para 6; Schlechtriem/Schroeter, Internationales UN-Kaufrecht, para 64;
Piltz, Internationales Kaufrecht, paras 2-40, 2-37. Less guardedly Staudinger/Magnus, Art 1, para 33; Honsell/Siehr, Art
1, para 5: CISG generally applicable. But see also Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para
27; Kröll et al/Mistelis, Art 1, para 35; Enderlein/Maskow/Strohbach, Art 1, note 1.
39 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 27; Staudinger/Magnus, Art 1, para 34; Kröll et
al/Mistelis, Art 1, para 35. But see for financial leasing Soergel/Lüderitz/Fenge, Art 3, para 6; Schlechtriem/Schroeter,
Internationales UN-Kaufrecht, para 64, uses the same criteria for hire-purchase contracts.

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40 See the 1988 UNIDROIT Convention on International Financial Leasing (Ottawa). The 2008 Dra Common Frame of
Reference prepared by the Study Group on a European Civil Code also contains specific provisions on leasing contracts.
41 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 30.
42 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 30.
43 See Supr Ct France, 20 February 2007, CISG-online 1492; OLG Hamm, 5 November 1997, CISG-online 381; Gruppo
Essenziero Italiano, SPA v Aromi DʼItalia, Inc, D Md, 27 July 2011, CISG-online 2223 (CISG not applicable, even if UCC
Maryland would apply to such contracts); same consideration with regard to Pennsylvania in Viva Vino Import Corp v
Farnese Vini Srl, ED Pa, 29 August 2000, CISG-online 675; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1,
para 31 with numerous references. See also for discussion Perales Viscasillas, Intʼl Distribution Contracts, pp 48 et seq
citing references.
44 See Supr Ct Poland, 27 January 2006, CISG-online 1399; Cour de Justice Genève, 20 May 2011, CISG-online 2429; OLG
München, 22 September 1995, CISG-online 208; Bridge, Intʼl Sale of Goods, para 10.22; Perales Viscasillas, Intʼl
Distribution Contracts, p 55. Application of CISG excluded for lack of specificity of the contract regarding goods in
Reecon North America, LLC v Du-Hope International Group et al, WD PA, 20 June 2019, CISG-online 4425.
45 See Supr Ct France, 20 February 2007, CISG-online 1492; BGH, 23 July 1997, CISG-online 285, 276, NJW 1997, 3304 and
3309 (Benetton I and II); Cour de Justice Genève, 20 May 2011, CISG-online 2429; OLG München, 22 September 1995,
CISG-online 208; Gerechtshof Arnhem, 27 April 1999, CISG-online 741; Hamburg CC, 21 March 1996, CISG-online 187;
Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 31; Brunner/Feit, Art 3, para 13; Bridge, Intʼl Sale of
Goods, para 10.22; Schlechtriem/Schroeter, Internationales UN-Kaufrecht, para 62; Thume, IHR 2009, 141, 145. Leaning
towards this approach but leaving it open, see Gruppo Essenziero Italiano, SPA v Aromi DʼItalia, Inc, D Md, 27 July 2011,
CISG-online 2223.
46 Cf on the legal consequences following avoidance by agreement, AGer Sursee, 12 September 2008, CISG-online 1728,
note 6.1.
47 Whilst the o icial English text of both the ULIS and the CISG uses the same term (ʻgoodsʼ), the French term used in the
CISG (marchandises) di ers from that in the ULIS (objets mobiliers).
48 Muñoz, Uniform L Rev 2019, 285 suggests using Art 7(2) to further develop the notion of goods.
49 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 39.
50 This approach also does justice to the change in the French version, the principal reason for which was the desire to
replace a specific ʻsale of goodsʼ term by one which had been rather less clearly defined by domestic law and which
was therefore more suitable for interpretation on an international basis: see Schlechtriem, 2nd edn, Art 1, para 20.
51 For details cf the comments on these provisions.
52 Domestic legal systems may consider contracts for res extra commercium to violate statutory prohibitions: see
Schwenzer/Hachem/Kee, para 7.08. Such rules functionally establish provisions relating to the validity of the contract:
see Schwenzer/Hachem/Kee, para 20.15. These rules are not pre-empted by the CISG on account of Art 4, s 2(a) (see
also Art 4, para 39 below).
53 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 39; Staudinger/Magnus, Art 1, para 49.
54 Undisputed. This understanding also corresponds with the meaning of ʻgoodsʼ and marchandises in English and French
law respectively; detailed Czerwenka, Rechtsanwendungsprobleme, p 147.
55 BGer, 16 July 2012, CISG-online 2371, IHR 2014, 99 (sale of a spinning plant from Switzerland to Indonesia).
56 See OLG Jena, 26 May 1998, CISG-online 513 (fish); CA Paris, 14 January 1998, CISG-online 347 (circus elephants); LG
Flensburg, 19 January 2001, CISG-online 619 (sheep); Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1,
para 34; Staudinger/Magnus, Art 1, para 48; Schlechtriem/Schroeter, Internationales UN-Kaufrecht, para 76.
57 Doubts expressed by Bridge, Intʼl Sale of Goods, para 10.20, who, however, also points rather to issues of validity under
domestic law (n 157).
58 See Staudinger/Magnus, Art 1, para 48 with references for these examples. Accord from Kröll et al/Mistelis, Art 1, para
 37.
59 See Bridge, Intʼl Sale of Goods, para 11.18.
60 Cf ICC, 7153/1992, CISG-online 35, JDI 1992, 1005, 1006 (materials destined for the construction of a hotel).
61 See OGH, 21 June 2005, CISG-online 1047; Gerechtshof ʻs-Hertogenbosch, 19 November 1996, CISG-online 323; OLG
Koblenz, 17 September 1993, CISG-online 91; OLG Köln, 26 August 1994, CISG-online 132; LG München I, 8 February
1995, CISG-online 203; Muñoz, Uniform L Rev 2019, 286.
62 See OGH, 21 June 2005, CISG-online 1047; Gerechtshof ʻs-Hertogenbosch, 19 November 1996, CISG-online 323; OLG
Koblenz, 17 September 1993, CISG-online 91; OLG Köln, 26 August 1994, CISG-online 132; LG München I, 8 February
1995, CISG-online 203.
63 Accord from Muñoz, Uniform L Rev 2019, 286.
64 Accord from Brunner/Meier/Stacher, Art 2, para 4; Schlechtriem/Schroeter, Internationales UN-Kaufrecht, para 85

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(distinction wrong under CISG); Rustad/Onufrio, (2010) 2 Hastings Sci & Tech LJ 25, 34 et seq; Green/Saidov, (2007) J
Bus L 161, 170; Diedrich, (2002) 6 VJ (Supplement) 65; idem, (1996) 8 Pace Intʼl L Rev 303 et seq, 325, 326; Muñoz,
Uniform L Rev 2019, 289. But see Gerechtshof ʻs-Hertogenbosch, 19 November 1996, CISG-online 323.
65 Accord from Muñoz, Uniform L Rev 2019, 286. Some authors advocate the application of CISG in the case of standard
so ware only, see in particular Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 38;
Staudinger/Magnus, Art 1, para 44; MüKoBGB/Westermann, 6th edn, Art 1, para 6.
66 See Art 3, para 3 below. Accord from Brunner/Maier/Stacher, Art 2, para 4; Muñoz, Uniform L Rev 2019, 286. Kröll et
al/Mistelis/Raymond, Art 3, para 24, agree to that extent but nevertheless distinguish sales of standard and customized
so ware. Contra Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 38, who states that the CISG will
typically not apply to contracts for customized so ware owing to Art 3(2).
67 Schlechtriem/Schroeter, Internationales UN-Kaufrecht, para 87, also considers this to be the crucial test (ʻthe more
serious objectionʼ).
68 See RB Arnhem, 28 June 2006, CISG-online 1265; Bamberger/Roth et al/Saenger, Art 1, para 7; Brunner/Meier/Stacher,
Art 2, para 4; Bridge, Intʼl Sale of Goods, para 10.20 (distinction driven more by form than substance and undesirable on
that account); Karollus, UN-Kaufrecht, p 21; Schmitt, CR 2001, 150. More guardedly Schlechtriem/Schroeter,
Internationales UN-Kaufrecht, para 86 (di icult but possible). Contra Schlechtriem/Schwenzer/Schroeter
Kommentar/Ferrari, Art 1, para 39; Staudinger/Magnus, Art 1, para 44.
69 Accord from Muñoz, Uniform L Rev 2019, 287 et seq with specifics regarding the adaptation of these provisions. Cf for
these issues also on the sale of data under the CISG above.
70 On the notion of ʻpreponderant partʼ, see Art 3 paras 18–20 below.
71 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 38; Staudinger/Magnus, Art 1, para 46;
MüKoBGB/Westermann, 6th edn, Art 1, para 6; Honnold/Flechtner, Art 1, para 56; Brunner/Meier/Stacher, Art 2, para 3;
Achilles, Kommentar, Art 1, para 4; Schlechtriem, AJP 1992, 346; but see MüKoBGB/P Huber, Art 1, para 23;
MüKoHGB/Mankowski, Art 1, para 18; Enderlein/Maskow/Strohbach, Art 1, note 2.
72 OLG Köln, 26 August 1994, CISG-online 132; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 38;
Staudinger/Magnus, Art 1, para 46; Kröll et al/Mistelis, Art 1, para 38; MüKoBGB/P Huber, Art 1, para 23;
Schlechtriem/Schroeter, Internationales UN-Kaufrecht, para 74.
73 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1 para 37; Staudinger/Magnus, Art 1, para 47;
Brunner/Meier/Stacher, Art 2, para 13; Herber/Czerwenka, Art 1, para 8; MüKoBGB/P Huber, Art 1, para 16; Bridge, Intʼl
Sale of Goods, para 10.20; Schlechtriem/Schroeter, Internationales UN-Kaufrecht, para 78.
74 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 36; Staudinger/Magnus, Art 1, para 51.
75 Excluding the CISG altogether: Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 36; Achilles,
Kommentar, Art 1, para 4; W Witz/Salger/Lorenz/Lorenz, Art 1, para 8; Bamberger/Roth et al/Saenger, Art 1, para 6;
Herber/Czerwenka, Art 1, para 7. For the application of the CISG in certain cases, see Merkt/Göthel, § 4, para 23;
Schlechtriem/Schroeter, Internationales UN-Kaufrecht, para 79; Merkt, ZVglRWiss 1994, 353, 361, 370.
76 See Staudinger/Magnus, Art 1, para 51.
77 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 36; Staudinger/Magnus, Art 1, para 56, both
with further references.
78 This term is also used in Arts 10(a), 12, 20(2), s 2, 24, 31(c), 42(1)(b), 57(1)(a) and (2), 69(2), 90, 93(3), 94(1), s 1, and (2),
and 96.
79 Undisputed; see instead of all Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 45.
80 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 45, citing references; Staudinger/Magnus, Art
10, para 4.
81 See OGH, 10 November 1994, CISG-online 117; OLG Köln, 13 November 2000, CISG-online 657; OLG Stuttgart, 28
February 2000, CISG-online 583; Trib Padova, 25 February 2004, CISG-online 819; Trib Rimini, 26 November 2002, CISG-
 online 737; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 46; Staudinger/Magnus, Art 1, para 63;
W Witz/Salger/Lorenz/Lorenz, Art 1, para 9; W Witz/Salger/Lorenz/W Witz, Art 10, para 2; Kröll et al/Brekoulakis, Art 10,
paras 13 et seq; Honnold/Flechtner,Art 1, para 43; Brunner/Meier/Stacher, Art 10, para 1; MüKoHGB/Mankowski, Art 1,
para 23; Bamberger/Roth et al/Saenger, Art 1, para 10; A E Butler, (2002) 6 VJ 275, 277.
82 See Trib Cantonal Valais, 23 May 2006, CISG-online 1532; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1,
para 46; Staudinger/Magnus, Art 1, para 64; Kröll et al/Brekoulakis, Art 10, para 15; Enderlein/Maskow/Strohbach, Art 1,
note 2.
83 See Staudinger/Magnus, Art 1, para 65.
84 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 46; Staub/Koller, Vor § 373 HGB, para 623. But
see Padovini, ZfRVgl 28 (1987), 87, 89
85 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 46; Staub/Koller, Vor § 373 HGB, para 623. But

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see Padovini, ZfRVgl 28 (1987), 87, 89.
86 See Staudinger/Magnus, Art 1, para 67; Schlechtriem/Schroeter, Internationales UN-Kaufrecht, para 26.
87 See Kröll et al/Brekoulakis, Art 10, para 21; Honsell/Melis, Art 10, para 2; Brunner/Meier/Stacher, Art 10, para 1; Ferrari
et al/Saenger, Int VertragsR, Art 10, para 2. Unclear: Cedar Petrochemicals, Inc v Dongbu Hannong Chemical Co, Ltd, SD
NY, 19 July 2007, CISG-online 1509 referencing the ʻprincipal place of businessʼ.
88 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 47; Staudinger/Magnus, Art 1, paras 66–7; W
Witz/Salger/Lorenz/Lorenz, Art 1, para 9; Honnold/Flechtner, Art 1, para 43; MüKoBGB/P Huber, Art 1, para 27;
MüKoHGB/Mankowski, Art 1, para 24; Herber/Czerwenka, Art 1, para 15.
89 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 47; Honnold/Flechtner, Art 1, para 42.
90 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 47; Staudinger/Magnus, Art 1, para 66.
91 Kröll et al/Mistelis, Art 1, para 44.
92 AppGer Basel-Stadt, 24 August 2018, CISG-online 3906, IHR 2019, 101 (upheld in BGer, 28 May 2019, CISG-online 4463,
BGE 145 III 383); Nutramax Laboratories, Inc v Hosokawa Micron International, Inc, D Md, 20 July 2012, CISG-online 2343
(no final decision, case allowed to proceed on that consideration).
93 See OLG Dresden, 30 November 2010, CISG-online 2183, IHR 2011, 142; Schlechtriem/Schwenzer/Schroeter
Kommentar/Ferrari, Art 1, para 40; Staudinger/Magnus, Art 1, para 69; Kröll et al/Mistelis, Art 1, para 42;
Brunner/Manner/Schmitt, Art 1, para 4.
94 Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 42. Probably also Nutramax Laboratories, Inc v
Hosokawa Micron International, Inc, D Md, 20 July 2012, CISG-online 2343 (buyer made plausible that CISG applies).
95 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 41; Staudinger/Magnus, Art 1, para 68; Ferrari
et al/Saenger, Int VertragsR, Art 1, para 12; Honsell/Siehr, Art 1, para 7. The 1983 Geneva Convention on Agency in the
International Sale of Goods has not entered into force.
96 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 51; Staudinger/Magnus, Art 1, para 68;
Honnold/Flechtner, Art 1, para 41; Enderlein/Maskow/Strohbach, Art 1, note 7.2; Ferrari et al/Saenger, Int VertragsR,
Art 1, para 12. Probably also Kröll et al/Mistelis, Art 1, para 46.
97 See Staudinger/Magnus, Art 1, para 68; Honnold/Flechtner, Art 1, para 41; Brunner/Manner/Schmitt, Art 1, para 6.
98 This appears to have been the situation in Interm Ppl Ct Wuxi, 10 December 2018, CISG-online 4107: US company
entered into contracts with subsidiaries of Chinese parent, the parent subsequently committed to make payments
under the contracts, the court applies the CISG based on Art 1(1)(a).
99 Cf also Intro to Arts 1–6, paras 18 et seq above. As to the date of ʻimplementationʼ as date of entering into force in the
respective State, see Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 64 (ratification, approval, or
acceptance alone are not su icient); Staudinger/Magnus, Art 1, para 86; Bamberger/Roth et al/Saenger, Art 1, para 14;
Ferrari, Applicabilità ed applicazioni, p 61.
100 Cf also the comments made relating to these provisions.
101 See Mitchell Aircra Spares Inc v European Aircra Service AB, ND Ill, 28 October 1998, CISG-online 444; OLG Rostock, 27
July 1995, CISG-online 209; Metropol Ct Budapest, 21 May 1996, CISG-online 252; overlooked by RB Arnhem, 17
January 2007, CISG-online 1455; OLG Naumburg, 27 April 1999, CISG-online 512; OLG Frankfurt 4 March 1994, CISG-
online 110.
102 Cf also the comments relating to this provision.
103 For arbitral tribunals, see Intro to Arts 1–6, para 13 above. For in-depth discussion of this provision see Maultzsch, FS
Schwenzer, pp 1213 et seq.
104 Cf BGer, 4 January 2021, CISG-online 5508 emphasizing that the CISG is not foreign law but part of Swiss federal law;
Köhler/Rüßmann, FS Cl Witz, p 447.
105 See eg Int Ct Russian CCI, 18 July 2005, CISG-online 1502: Russian buyer and Indian seller included a choice of law
clause designating Russian law. The Tribunal applied the CISG on the basis of Art 1(1)(b). Accord from
 Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 81; Staudinger/Magnus, Art 1, para 95; Kröll et
al/Mistelis, Art 1, para 54; Maultzsch, FS Schwenzer, pp 1213, 1216.
106 Not surprisingly, Art 1(1)(b) has received severe criticism already at the Vienna Conference, see eg the statement by
Herber, O R, pp 236, 237, nos 9–12 who stated that it was such mechanism that had caused reluctance amongst States
to accede to the Hague Sales Law and that subparagraph (b) would have to be expected to raise serious problems of
interpretation and application. Consequently, he suggested to delete the rule. The subsequent German proposal was,
however, rejected with 25:7 votes and 10 abstentions (O R, p 83). Cf also Bianca/Bonell/Jayme, Art 1, note 1.4.
107 This includes the situation where the one State only became a Contracting State subsequent to the conclusion of the
contract and due to Art 100(2) is not retroactively considered a Contracting State. Such was the situation in Zodiac
Seats US LLC v Synergy Aerospace Corp, ED Tex, 23 April 2019, CISG-online 4234: Seller located in the US (Art 95
reservation State), buyer with places of business in Colombia (Contracting State at contract formation) and Brazil

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(non-Contracting State at contract formation).
108 Accord for this sequence and the resulting priority of Art 1(1)(a) over Art 1(1)(b) Köhler/Rüßmann, FS Cl Witz, 452 et seq.
109 Cf Zodiac Seats US LLC v Synergy Aerospace Corp, ED Tex, 23 April 2019, CISG-online 4234: Seller located in the US (Art
95 reservation State), buyer with places of business in Colombia (Contracting State) and Brazil (non-Contracting State
at contract formation), CISG applied based on Art 1(1)(a) because the court found buyerʼs Columbian place to have the
closest connection to the contract. Otherwise, due to the USʼ reservation under Art 95 the CISG would not have applied
via Art 1(1)(b), even though Texas law (law of a Contracting State under Arts 1(1)(b), 93) would have been applicable.
110 See Trib Padova, 25 February 2004, CISG-online 819; Trib Rimini, 26 November 2002, CISG-online 737; Trib Vigevano, 12
July 2000, CISG-online 493; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 71; Staudinger/Magnus,
Art 1, para 93. For arbitral tribunals see Intro to Arts 1–6, para 13 above.
111 See Schroeter, (2018) 22 VJ 30.
112 As to the relation of these Conventions to the CISG, see Intro to Arts 1–6, para 6 above; Schroeter, Art 90, paras 47–56
below; Bridge, Intʼl Sale of Goods, paras 11.14–11.15.
113 See BGH, 11 May 2010, CISG-online 2125; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, paras 72, 73;
Brunner/Manner/Schmitt, Art 1, para 10; Schroeter, (2018) 22 VJ 18; Pohl-Michalek, Forum Prawnicze 2020, 46.
114 This is eg the case in Brazil, see Stringer, (2005–06) 44 Col J Transnatʼl L 960.
115 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 71.
116 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 71; Staudinger/Magnus, Art 1, para 107.
117 See Staudinger/Magnus, Art 1, para 106; but see Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 71;
Brunner/Manner/Schmitt, Art 1, para 10; Czerwenka, Rechtsanwendungsprobleme, pp 161, 162. There is little practical
relevance to this dispute because conflict of laws rules typically accept references to their legal systems as referrals to
the substantive law without conflict of laws rules. For the former German Art 35 EGBGB see LG Hamburg, 26
September 1990, CISG-online 21; LG Aachen, 3 April 1990, CISG-online 12; Staudinger/Magnus, Art 1, para 105. See now
Art 20 Rome I Regulation.
118 Schlechtriem, Internationales UN-Kaufrecht, 4th edn, para 17; Teklote, p 50 (internal conflict rule). Contra
Schlechtriem/Schroeter, Internationales UN-Kaufrecht, paras 37–9. Di erentiated approach taken by Maultzsch, FS
Schwenzer, pp 1213, 1224 et seq.
119 See BGer, 4 January 2021, CISG-online 5508; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 76;
Staudinger/Magnus, Art 1, para 84; W Witz/Salger/Lorenz/Lorenz, Art 1, para 12; Herber/Czerwenka, Art 1, para 17;
Czerwenka, Rechtsanwendungsprobleme, p 162. But see Wethmar-Lemmer, De Jure 2016, 65: CISG applies as foreign
law. This has consequences in some States for the question of whether the parties or the court must investigate the
interpretation of the CISG in the law of the State referred to by the courtʼs conflict rules (accord Bridge, Intʼl Sale of
Goods, para 10.12), and for the authority of higher courts such as the German BGH to review the interpretation of the
law by lower courts, which would be restricted, if the CISG were applied as foreign law.
120 For the dra ing history and the discussions leading to Art 95, see paras 2, 3 above; Winship, Scope, pp 1–3 et seq.
121 See Staudinger/Magnus, Art 1, para 108.
122 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 80; Honnold/Flechtner, Art 1, para 47.5;
Brunner/Manner/Schmitt, Art 1, para 14; MüKoHGB/Mankowski, Art 1, para 40; Ferrari et al/Mankowski, Int VertragsR,
Art 95, para 5; G Bell, (2005) 9 Singapore YB Intʼl L 65; Winship, Scope, pp 1–32; but see Staudinger/Magnus, Art 1, para
108; Ferrari et al/Saenger, Int VertragsR, Art 1, para 19.
123 See Staudinger/Magnus, Art 1, para 110; Honnold/Flechtner, Art 1, para 47.5; MüKoHGB/Mankowski, Art 1, para 39;
Bianca/Bonell/Evans, Art 95, note 3.4; Soergel/Lüderitz/Fenge, Art 1, para 16; Neumayer/Ming, Art 1, note 8;
Bamberger/Roth et al/Saenger, Art 1, para 19; Ferrari et al/Saenger, Int VertragsR, Art 1, para 20; Maultzsch, FS
Schwenzer, pp 1213, 1226; Schmidt-Kessel, ZEuP 2002, 684; Vékás, IPRax 1987, 346; Winship, Scope, pp 1–27, 31.
124 See CISG-AC, Op 15 Schroeter, Comment 3; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 78; Kröll
 et al/Herre, Art 95, para 8; Brunner/Manner/Schmitt, Art 1, para 14; Honsell/Siehr, Art 1, para 17; Bridge, Intʼl Sale of
Goods, para 10.56; Schlechtriem/Schroeter, Internationales UN-Kaufrecht, para 43; Piltz, Internationales Kaufrecht,
para 2-104; Czerwenka, Rechtsanwendungsprobleme, p 159; Schroeter, FS Kritzer, pp 446 et seq.
125 See Schroeter, FS Kritzer, pp 446 et seq; G Bell, (2005) 9 Singapore YB Intʼl L 63.
126 See Schroeter, FS Kritzer, p 447.
127 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 48; Staudinger/Magnus, Art 1, para 72;
Czerwenka, Rechtsanwendungsprobleme, p 160; Karollus, UN-Kaufrecht, p 29; Siehr, RabelsZ 52 (1988), 591. But see
Soergel/Lüderitz/Fenge, Art 1, para 17.
128 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 48; Staudinger/Magnus, Art 1, para 80; W
Witz/Salger/Lorenz/Lorenz, Art 1, para 14; Achilles, Kommentar, Art 1, para 6; Schlechtriem, IPRax 1990, 278.
129 See Staudinger/Magnus, Art 1, para 72.

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130 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 57; Staudinger/Magnus, Art 1, para 81.
131 See Trib Vigevano, 12 July 2000, CISG-online 493; Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para
48; Staudinger/Magnus, Art 1, para 82; W Witz/Salger/Lorenz/Lorenz, Art 1, para 15; MüKoHGB/Mankowski, Art 1, para
27; Herber/Czerwenka, Art 1, para 20; Brunner/Manner/Schmitt, Art 1, para 5; Bamberger/Roth et al/Saenger, Art 1,
para 22; Czerwenka, Rechtsanwendungsprobleme, p 136; Heuzé, Vente internationale, note 103; T M Müller, Beweislast,
p 45; Pünder, RIW 1990, 869.
132 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 49; Staudiger/Magnus, Art 1, para 73;
Soergel/Lüderitz/Fenge, Art 1, para 6; Bamberger/Roth et al/Saenger, Art 1, para 26; Achilles, Kommentar, Art 1, para 7;
Czerwenka, Rechtsanwendungsprobleme, p 136; Karollus, UN-Kaufrecht, p 29.
133 UNCITRAL YB II (1971), p 52, no 13 (Art 2(a)) (ʻneither knew nor had reason to knowʼ).
134 UNCITRAL YB III (1972), p 83, nos 9 et seq.
135 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 48; Staudinger/Magnus, Art 1, para 75.
136 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 51; Staudinger/Magnus, Art 1, para 74; but cf
Bridge, Intʼl Sale of Goods, para 11.10, who favours ʻin the interests of justiceʼ that only dual knowledge of the
residences in di erent States should lead to the Conventionʼs application: this goes much too far in replacing the
objective ʻapparentʼ test by a fully subjective ʻknowledgeʼ test.
137 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 51; Staudinger/Magnus, Art 1, para 74;
MüKoHGB/Mankowski, Art 1, para 26. But see Impuls ID Internacional, SL, Impuls ID Systems, Inc, and PSIAR, SA v Psion-
Teklogix, Inc, SD Fla, 22 November 2002, CISG-online 783.
138 See MüKoHGB/Mankowski, Art 1, para 26; Soergel/Lüderitz/Fenge, Art 1, para 7; contra: Brunner/Manner/Schmitt, Art
1, para 6; probably also Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 52; le open by
Staudinger/Magnus, Art 1, para 76.
139 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 53; Staudinger/Magnus, Art 1, para 79;
MüKoBGB/Westermann, 6th edn, Art 1, para 13.
140 Cf Impuls ID Internacional, SL, Impuls ID Systems, Inc, and PSIAR, SA v Psion-Teklogix, Inc, SD Fla, 22 November 2002,
CISG-online 783 where the contract between the Spanish/Argentinian/Florida plainti s and the Canadian defendant
was negotiated and concluded in England on the defendantʼs side by English corporations: the court held that at the
time of the conclusion of the contract, the place of business of the defendant was not known to the parties.
141 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 54; Staudinger/Magnus, Art 1, para 77.
142 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 56; Staudinger/Magnus, Art 1, para 78.
143 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 56; Staudinger/Magnus, Art 1, para 78.
144 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 56; Staudinger/Magnus, Art 1, para 78.
145 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 58. More guardedly, Brunner/Manner/Schmitt,
Art 1, para 6.
146 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 58; Staudinger/Magnus, Art 1, para 72;
Brunner/Manner/Schmitt, Art 1, para 6; MüKoBGB/Westermann, 6th edn, Art 1, para 12; Enderlein/Maskow/Strohbach,
Art 1, note 7.1.
147 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 51.
148 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 51; Staudinger/Magnus, Art 1, para 74;
MüKoHGB/Mankowski, Art 1, para 26. But see Impuls ID Internacional, SL, Impuls ID Systems, Inc, and PSIAR, SA v Psion-
Teklogix, Inc, SD Fla, 22 November 2002, CISG-online 783.
149 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 50; Secretariatʼs Commentary, Art 1, no 9;
Brunner/Manner/Schmitt, Art 1, para 6; Schlechtriem/Schroeter, Internationales UN-Kaufrecht, p 12; Czerwenka,
Rechtsanwendungsprobleme, p 135; Reinhart, UN-Kaufrecht, Art 1, para 11; Herrmann, Anwendungsbereich des Wiener
Kaufrechts, p 85.
150 See Staudinger/Magnus, Art 1, para 75.
151 See OGH, 15 October 1998, CISG-online 380; Staudinger/Magnus, Art 1, para 123; Schlechtriem/Schroeter,
Internationales UN-Kaufrecht, para 12.
152 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 60; cf BGH, 31 October 2001, CISG-online 617,
for further examples of application, see Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 60 n 292.
153 See Schlechtriem/Schwenzer/Schroeter Kommentar/Ferrari, Art 1, para 60.

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