Q 5-1
(a) Why does the CISG not apply to damages for death or personal injury?
(b) In this respect, is it relevant whether the claims available under the applicable domestic law are non-contractual or contractual damages? In other words, is the CISG always pre-empted in case of damages claims for death or personal injury or only if the respective claim under the domestic law would be tort claim? See A 5-1 and A 5-3.
(a) The drafters of the CISG wished to ensure that ‘complex’ domestic product liability rules would not be displaced by the Convention.
(b) The view expressed in A 5-1 is that the CISG is always pre-empted in such a case regardless of whether the claim for compensation of death or personal injury is contractual or extra-contractual. However, according to the CISG Advisory Council (A 5-3), a distinction should be made between damage caused to the goods themselves and damage caused to other property of the buyer; in the first case, the CISG should prevail over domestic law, whereas in the second case, there may be claims for damages both under the CISG and domestic law.
Q 5-2
(a) Which law governs a claim for damages to property other than the goods sold which are due to the seller’s breach of contract? See A 5-1 and A 5-3.
(b) Can claims for which the applicable domestic law would provide in such a case be concurrently relied on? See A 5-1 and A 5-3.
(a) They are governed by the CISG.
(b) The question is disputed. Basically, there are three positions: a) the CISG governs the case exclusively; b) if the claim available under domestic law qualifies as a non-contractual claim (which is to be determined under the applicable domestic law), the buyer can avail itself both of Articles 74 et seq CISG and the domestic tort claim; or c) liability under the applicable domestic law, whether contractual or not, is not excluded by the CISG.
Q 5-3
If, because of the seller’s breach of contract, the buyer is sued for personal injury caused to its customers by the defective product, does the buyer’s claim for indemnity against the seller fall under the CISG? See A 5-2 and A 5-3
A first view holds that the term ‘any person’ in Article 5 includes the buyer’s customers and, therefore, that the buyer’s recourse against the seller cannot be based on the CISG. According to a second view, the recourse claim is actually not triggered by death or personal injury but by economic loss consisting of that sum of money the buyer has to pay as compensation to its customers, and thus the CISG applies. A 5-2 and A 5-3 are in favour of this second view.
