Question 1

The CISG finds application to what?

Accepted Answer

Formation of contract Rights and obligations of the parties

Question 2

What is "validity" in the meaning of CISG 4 lit.a?

Accepted Answer

Autonomous interpretation Certainly excluded from CISG is: Capacity Illegality, immorality, ordre public Control of standard form contracts Formation of AGB is covered by the CISG! Form requirements: CISG 11

Question 3

May a claimant call upon OR 24 I Ziff. 4 in order to avoid the valid conclusion of the contract based on the quality of a good/object?

Accepted Answer

BGer 4A_543/2018 No, "Entscheidend ist, ob eine Sachfrage von den Verfassern des Übereinkommens gesehen und mit einer zumindest «funktional äquivalenten» Lösung geregelt wurde" I.c. refer to CISG 35 ff. and 45 ff.

Question 4

Are the following situations governed or not governed by the CISG: 1. Error regarding quality or characteristic of goods? 2. Error in person, quantity or contract? 3. Thread, fraud/misrepresentation, gross disparity? 4. Initial impossibility?

Accepted Answer

1. CISG applicable: CISG 35 2. CISG not applicable 1. Formation of contract: governed by the CISG 2. Vitiated consent: not governed by the CISG Does CISG govern this subject " functional "? is Key-Q! Check OR 24 I Ziff. 1 (CISG not applicable) Ziff. 2 (CISG not applicable) Ziff. 3 (CISG not applicable) Ziff. 4 (CISG applicable, cf. BGer!) 3. CISG not applicable 4. CISG applicable: CISG 68

Question 5

Are damages, which a re-seller of goods has to pay to a third party, which was injured by the defective goods covered by the CISG?

Accepted Answer

CISG 5 Consequential loss covered? Debated: Option 1: CISG 5 "any person" therefore, CISG not applicable Option 2: CISG applicable because buyer/re-seller suffered an economic loss/consequential loss

Question 6

Can you name a few issues which are excluded from the CISG but not expressly stated so?

Accepted Answer

Agency Limitation periods Assignment of rights and transfer of obligations Plurality of debtors and creditors Third party rights Set-off (debated)

Question 7

What happens if contract violation gives also rise to a tort claim under national law?

Accepted Answer

Debated but concurrent liability is today accepted by most of the authors e.g.: faulty machine causes a fire in the factory

Question 8

In which layers would you distinguish the hierarchy of norms of the CISG?

Accepted Answer

1. Mandatory rules of the CISG CISG 12 Exclusion of the CISG of course possible (CISG 6)! 2. Contractual provisions Contract terms CISG 9 I CISG 9 II: incoterms! Refer to ecuadorian example 3. Default rules of the CISG

Question 9

Which article(s) of the CISG are relevant for the interpretation of a _contractual_ clause and even the contract as a whole?

Accepted Answer

CISG 8 I: Subjective intent II: Objective intent

Question 10

Which are internationally accepted principles of interpretation of a contract?

Accepted Answer

Interpretation of a contract as a whole Meaning has to be determined according to the text as a whole Individual agreements precede standard terms Exceptions are interpreted narrowly Contra proferentem Ambiguous contract term is interpreted in favor of the counter party Favor negotii Interpretation that keeps the contract intact/meaningful is preferred

Question 11

Which CISG article concerns the interpretation of the convention?

Accepted Answer

CISG 7 I

Question 12

What are the principles of interpretation according to CISG 7 I?

Accepted Answer

Regard to international character Need to promote uniformity Observance of good faith in international trade Keep in mind: Autonomous interpretation!

Question 13

What does "regard to international character" mean?

Accepted Answer

Autonomous interpretation Ratio legis International convention Drafting history: compromise between legal systems Deliberate choice of "neutral" terminology If terminology parallels national laws caution is still needed Refer to Bundesgerichtshof-Entscheid Goal: Reaching an interpretation result which should be acceptable in different legal systems

Question 14

What does "Need to promote uniform application" mean?

Accepted Answer

Ratio legis Unification of law can only succeed if CISG is applied the same way in all Member States, because: No authoritative high court available But: Several databases serving information in English CISG Advisory Council Goal: Courts and arbitral tribunals should take account of previous decisions

Question 15

What does "Observance of good faith in international trade" mean?

Accepted Answer

Ratio legis Compromise of Civil Law and Common Law legal systems Rights under CISG shall not be abused by one party Some general principles underlying the CISG can be based on the good faith principle: e.g. venire contra factum proprium Debated: Can the good faith principle be used to fill gaps in the contractual relationships of the parties? Be aware: CISG stipulates only an interpretation rule, not a rule for the parties

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