Defining the Borders of Uniform International Contract Law: The CISG and Remedies for Innocent, Negligent or Fraudulent Misrepresentation

Abstract

The exact definition of the substantive scope of the United Nations Convention on Contracts fur the International Sale of Goods (CISG) of 11 April 1980 is a difficult but necessary task: Necessary because the scope determines over which domestic rules of law the Convention prevails, thereby preempting the concurrent domestic law’s application, and difficult because the CISG itself provides limited guidance about the method through which this definition is to be achieved. This article commences by discussing two approaches used in this regard in case law and writings on the Convention: (1) the reliance on Article 4 CISG, and (2) the use of dogmatic categories of domestic law such as contract and tort. Both are found wanting, in particular in light of Article 7(1) CISG calling for an internationally uniform interpretation of the Convention’s scope. Against this background, the article develops a novel two-step approach with Article 7(1) CISG in mind. According to this approach, a domestic law rule is displaced by the Convention if (1) it is triggered by a situation which the Convention also applies to (the factual criterion), and (2) it pertains to a matter that is also regulated by the Convention (the legal criterion). Only if both criteria are cumulatively fulfilled, the domestic law rule concerned overlaps with the Convention’s sphere of application in a way that will generally result in its preemption. In third part of the article, the two-step approach is being applied to remedies for misrepresentation known in Common law jurisdictions, in turn dealing with remedies for innocent misrepresentation, negligent misrepresentation and fraudulent misrepresentation and thus defining their relationship towards the uniform law rules of the Sales Convention.