Q 2-1
(a) Why have consumer contracts been excluded from the CISG?
(b) Why are consumer contracts sometimes treated differently from commercial contracts? See also Section 2-104(1) UCC and § 13 BGB.
(a) Consumer contracts have been excluded from the CISG in order to avoid an overlap or rivalry between the CISG and domestic consumer law.
(b) Merchants are deemed to be equal when doing business, whereas consumers are deemed having less knowledge about the goods they intend to buy. Thus, in a consumer contract, the merchant is deemed having an advantage compared to consumers and the law tries to even out this imbalance by increasing the protection of the consumer.
Q 2-2
(a) Do the PICC 2016 apply to consumer contracts?
(b) Do the PICC 2016 provide for a reservation similar to Article 2(a) CISG, second half-sentence?
(a) No, they apply to ‘commercial contracts’, under exclusion of consumer transactions.
(b) No. Indeed, such a reservation would not have been possible: since the PICC are mere ‘general principles of law’, they cannot derogate from the underlying mandatory domestic law.
Q 2-3
Why were sales by auction excluded from the Convention’s sphere of application (Art 2(b) CISG)?
Sales by auction are often subject to mandatory rules of domestic law.
Q 2-4
(a) Why have sales of stocks, investment securities and negotiable instruments been excluded (Art 2(d) CISG)?
(b) Documentary sales are types of contract for the sale of goods in which possession of the goods is transferred from the seller to the buyer through delivery of a negotiable document of title issued by the carrier. They are governed by the CISG (see below Art 57 et seq.). Explain the difference between a documentary sale and a sale of stocks, negotiable instruments etc excluded under Article 2(d) CISG.
(a) Domestic mandatory rules cover this field as well.
(b) The difference refers to the object of the sale. In a documentary sale, the object of the sale (what is bought) are the goods, but those goods are represented by the negotiable document. In contrast, in a sale of stocks etc, the object of the sale are rights which, by its definition of the scope of application in Article 1(1), are not governed by the Convention.
Q 2-5
(a) Why is the sale of ships, vessels, aircrafts and hovercrafts not governed by the CISG (Art 2(e))?
(b) The sale of parts of those goods (motor, railing, furniture, etc) is governed by the Convention. Explain why.
(a) Those vehicles are usually registered under domestic law and thus considered immovable goods.
(b) Those parts of the vehicles are independent goods, as long as they have not been installed in the vehicle.
