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Part II Ambit of Sales Law, 8 Identifying the Boundaries of a Sales Contract

From: Global Sales and Contract Law

Ingeborg Schwenzer, Pascal Hachem, Christopher Kee

Content type:
Book content
Product:
International Commercial Law [ICML]
Published in print:
26 January 2012
ISBN:
9780199572984

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

Subject(s):
Passing of property — Performance of contract — Conformity of goods

8  Identifying the Boundaries of a Sales Contract

  1. A.  General Notions of Sales 8.01

    1. I.  Passing of Property in the Goods 8.01

    2. II.  Framework Agreements 8.04

  2. B.  Sale by Auction 8.07

    1. I.  Domestic Solutions 8.07

    2. II.  Uniform Law 8.14

  3. C.  Sale versus Other Supply of Goods Contracts 8.15

    1. I.  Barter 8.16

    2. II.  Hire Purchase and Leasing Agreements 8.19

  4. D.  Mixed Contracts 8.27

    1. I.  Contracts for Goods to be Manufactured or Produced 8.30

      1. 1.  Substance of the Contract Approach 8.31

      2. 2.  Outcome of the Contract Approach 8.33

      3. 3.  Conclusion 8.39

    2. II.  Contracts for Supply and Services 8.40

    3. III.  Turnkey Contracts 8.46

(p. 108) A.  General Notions of Sales

I.  Passing of Property in the Goods

8.01  All legal systems examined in this work agree that a contract of sale usually implies that the seller is obliged to deliver the goods and transfer property (or cause to pass), and conversely the buyer has to pay the price.1 This is also the position adopted in uniform laws.2 Even if differential elements have been added to the definition of sale in many countries—for example, whether the price needs to be paid in money3—in essence the contract of sale remains the same.

(p. 109) 8.02  Although the aim of a sale is the transfer of property from the seller to the buyer, most legal systems distinguish between the contract that creates the respective obligations of the parties and its performance, especially the transfer of property. On a uniform level, the CISG as well as OHADA AUDCG only deal with obligations of the parties to a contract of sale; the transfer of property is left to the otherwise applicable domestic law.4

8.03  In the common law the distinction is made between an agreement to sell and sale, both of which fall under the broader heading of contract of sale.5 The distinction can be explained by noting that an agreement to sell is merely a contract, whereas a sale is a contract and a conveyance.6 France and closely related legal systems adopt a different approach as the transfer of property is the legal consequence of the contract.7 This presupposes that the goods are identified to the contract. If this is not the case at the time of the conclusion of the contract, this transfer is postponed.

II.  Framework Agreements

8.04  Individual sales contracts are often concluded under the umbrella of a broader agreement between the parties such as a distributorship agreement or an output or requirement contract. In such situations, the question arises whether the rules for the sales of goods apply to the framework contract as well. Under most legal systems no specific rules on such framework agreements are codified. However, the USA UCC specifically refers to output, requirements, and exclusive dealings contracts, and thus draws framework contracts within the scope of the UCC.8

8.05  The question of which law to apply to the framework agreement becomes especially pertinent in the realms of uniform law such as the CISG and OHADA AUDCG. Difficulties arise when different legal regimes regulate the different aspects of the parties’ arrangements. For example, warranties required by one law and imputed into the framework agreement may be in conflict with warranties required by the (other) law that governs the individual sales contracts.

8.06  It is generally held that distributorship, dealership, agency, and franchise contracts are excluded from the scope of the CISG.9 The situation may however be different if the framework agreement specifies the sales obligations of the parties and the parties intend these obligations to (p. 110) form the main part of their sales contract.10 In any case the supply orders can be sales contracts in their own right and may therefore fall under the CISG.11

B.  Sale by Auction

I.  Domestic Solutions

8.07  An auction is a special procedure where different potential buyers compete by placing offers to conclude a sales contract. The contract is typically concluded with the buyer offering the highest price. A sale by auction must be distinguished from a tender or submission process. In a tender process, the interested person, usually the buyer, invites bids or offers from potential sellers.

8.08  Most jurisdictions contain specific rules on the formation of contracts for sale at an auction.12 Typically these rules provide that it is the buyer who is placing the offer and that the sale by auction is concluded when the auctioneer so announces by the fall of the hammer.13 In France, Luxembourg, Italy, and Spain, however, the offer emanates from the auctioneer and is accepted by the highest and last bid.14

8.09  Under civil law systems, where offers are in general irrevocable,15 the offeror is bound to its bid until a higher bid is placed;16 whereas in common law jurisdictions there is a general rule that offers may be revoked,17 and an offeror may retract its bid any time before the conclusion of the contract by the auctioneer.18

8.10  The question of whether the auctioneer must accept the highest bid by knocking down the goods is treated differently. Whereas some jurisdictions recognize the liberty of the auctioneer not to accept the highest bid19 others in general only recognize this freedom if there has been a reserve price.20

(p. 111) 8.11  Some legal systems go beyond mere formation rules and make further stipulations regarding the payment of the purchase price. For example, some jurisdictions require the buyer to pay the purchase price in cash;21 others demand at least half of the purchase price to be paid immediately at the auction.22

8.12  Online auctions gained great practical importance. For members of the European Union, there is specific relevance flowing from the Distance Selling Directive.23 According to Article 3(1) of this directive, it is only applicable to contracts not concluded at auctions. This raises the question, whether contracts concluded via eBay or similar websites are ‘auctions’.24 The practical relevance is that if the answer is in the affirmative, there is no right to withdraw for consumers during a cooling-off period. If the answer is in the negative, consumers do have a right to withdraw within a certain cooling-off period after the conclusion of the contract. A closer look at this issue reveals, however, that only those legal systems which actually define the concept of auction in their civil codes and thereby rely on the knockdown as the decisive element for the conclusion of the contract face problems. This became visible in an important decision of the German Bundesgerichtshof25 where the court held that consumers had a right to withdraw within a certain cooling-off period. Online auctions were not actually to be considered as auctions as the contract was not concluded by knockdown as required by § 156 CC but by lapse of the time frame set by the seller who was considered by the German Bundesgerichtshof to have actually made the offer to contract. With regard to this latter point, the German Bundesgerichtshof argued that as the seller declared to conclude a contract with the highest bidder, this amounted to a legally relevant offer to contract. Whether other countries will adopt this position is not yet certain. At least some comments suggest that the decision of the German Bundesgerichtshof will not function as a role model.26

8.13  Under French law, Article L321-3 Com C distinguishes ‘true’ and ‘false’ online auctions. Under this approach most online auction sites (like eBay) do not constitute public auctions since they do not involve a third party procuring entity and the platform provider is not involved in the conclusion in the contract. In effect they are trade platforms putting in relation sellers and potential buyers, not auctions. There is, however, an exception carved out in Article L321-3(3) Com C whereby websites trading cultural goods are treated as auctions. Following this approach, the Distance Selling Directive would be regarded as applicable to eBay and other trade platforms on the Internet, save for those involving cultural goods.

(p. 112) II.  Uniform Law

8.14  Article 2(b) CISG excludes auctions from its sphere of application.27 This provision is commonly understood to exclude all kinds of auctions, including private auctions.28 An increasing number of authors criticize this provision and advocate its restriction to traditional forms of auctions; thus including online auctions within the scope of the CISG.29 This view appears sound. In traditional auctions the auctioneer and buyers are in the same room, and thus this type of transaction would not naturally be within the scope of the CISG in any case. Parties involved in online auctions, however, will generally be aware of the potential international nature of the transaction. Finally, auctions made in the context of executions are not excluded by Article 2(b) CISG but fall under the exception in Article 2(c) CISG where all sales made on execution or otherwise by authority of law are excluded from the Convention.30

C.  Sale versus Other Supply of Goods Contracts

8.15  There are other types of contract which, while sharing the aim of supplying of goods, can be distinguished from contracts of sale. Two such types of contract are barter transactions and leasing as well as hire purchase agreements.

I.  Barter

8.16  In many legal systems a contract of sale is explicitly defined as one involving the exchange of goods for money.31 In contrast, the Islamic Shari’a and the Iraqi Civil Code both define a contract of sale (bay) as the exchange of property (mal 32) for property.33 In these systems the exchange of property for property is therefore a broader concept that encompasses a contract of sale in the narrower sense as a subcategory.34

(p. 113) 8.17  However domestic laws regularly equate barter contracts with contracts of sale, and subject such transactions to the same provisions.35 The Iranian Civil Code takes a different approach from all its Arab and Middle Eastern counterparts by stating that the special rules relating to sales do not apply to barter.36 Nevertheless, no special solution on how barter is governed was mentioned in the Iranian Civil Code.

8.18  Although there is no question that the CISG offers suitable solutions to barter issues, there is still some support for the view that the CISG does not apply to barter transactions.37 The now arguably prevailing view however rightly subjects barter contracts to the regime of the CISG.38 The term price does not need to be restricted to money rather both parties can be treated as sellers in regards to the goods they deliver and buyers in regard to the goods they receive.39

II.  Hire Purchase and Leasing Agreements

8.19  The terms ‘hire purchase’ as well as ‘leasing’ have subtle differences of understanding in the different legal systems. This not only applies to the common law and the civil law, as even amongst common law systems there are nuances.

8.20  Generally, in the common law, a hire purchase agreement is an arrangement by which a lessee obtains goods initially on a hire basis, with the option (but not an obligation) to purchase the goods. Pursuant to a hire, possession of the goods is given to the lessee in return for regular payments but property is retained by the lessor. Property in the goods is only transferred when the option to purchase is exercised. There may be two or three parties involved in a hire purchase arrangement. Where three parties are involved, a specialist financier pays the price to the seller and enters into the hire purchase agreement with the lessee. Similar to hire purchase agreements, or even in some cases equivalent, are so-called leasing contracts found especially in the USA. The UCC dedicates Article 2A to these types of contracts. In common law systems (p. 114) the term ‘leasing’ however is generally a broader term than ‘hire purchase’ as it does not always include an option to purchase.

8.21  It has been noted with particular reference to England and Wales that legislation has effectively eliminated the distinction that could once be drawn between a conditional sale and a hire purchase agreement.40 This is probably not true of all common law jurisdictions. In the first instance a conditional sale is within the scope of the sale of goods Acts,41 whereas a hire purchase agreement is not.42 Second, the fact that under a hire purchase there is only an option to purchase, and the buyer will not simply obtain full title by paying the full price was at one time a matter of considerable importance. The buyer in a conditional sale contract could pass good title to an innocent third party purchaser,43 whereas a party who had merely hired the goods with an option to purchase could not.44

8.22  Comparatively, civil law jurisdictions appear to use the term hire purchase to mean what the common law would understand as a conditional sale; that is, the term hire purchase is usually used for hire contracts through which property will pass to the lessee at the end of the contract. In contrast the leasing arrangement typically involves three parties.45 The arrangement usually consists of a sale contract between the manufacturer of the goods and the financing institution as well as a hire contract between the latter and the lessee. However most civil law countries have not established specific rules applying to hire purchase or leasing contracts at the B2B level.46

8.23  Although in all legal systems agreements of this type are frequently distinguished from sale of goods contracts, they are in many cases equated in terms of the rights and remedies the lessee (or buyer) has in the cases of non-conformity of the goods. For example, some civil law systems either apply sale of goods provisions because they are part of general contract law or they apply sale of goods provisions mutatis mutandis to such agreements where the ultimate goal is the transfer of property to the lessee.47 Protection can also be achieved by securing the lessee’s rights against the lessor48 or by granting the lessee direct rights against the supplier of the goods.49

8.24  In the context of the CISG, the discussion has focused on the question of whether sales with specific financing agreements are within its scope. Under the CISG hire purchase agreements may be subject to the Convention where the final acquisition of the goods prevails over the mere use of the goods.50 In other words, where the property in the goods is transferred to the (p. 115) ‘buyer’ or the value of the goods has fully depreciated by the end of the contract, it is appropriate to apply the sale of goods provisions.51

8.25  With regard to true lease contracts—that is, when there is no intention to transfer property—the correct and prevailing opinion is that these contracts are, save for exceptional circumstances, excluded from the CISG as the preponderant part of the obligation is to make the use of the goods available to the lessee.52 This is also supported by the fact that separate specific rules for leasing contracts have been developed.53 However, where three parties are involved the contractual relationship between the seller and the lessor may very well be governed by the CISG.54 The same holds true for the sales contract in a sale-and-lease-back transaction, as this consists of two legally distinct transactions.55

8.26  As a final observation it is worth noting that there is typically always a credit motive prompting parties to enter into a hire purchase or lease agreement. This is also true of conditional sales where the condition is payment related. Consequently, and particularly in the context of consumers, the transaction may also be subject to consumer credit regulation.

D.  Mixed Contracts

8.27  It is rare to find a contract that is purely a sale of goods, particularly in international transactions; it is far more common that transactions will include elements of other types of contracts. In modern contracts the direct opposition of seller and buyer is no longer a major characteristic of the transaction, rather the seller and buyer work in cooperation. The seller is typically expected to provide services, to a lesser or greater extent, beyond simply transferring the property in the goods.

8.28  The first question that then arises is whether there is actually more than one contract—that is, one for the sale of goods and another for services. This question has to be answered by interpreting the contractual arrangement according to the intention of the parties. If several contracts are not found but rather a single mixed contract, the second question to arise is whether the rules for contracts of sale or those for contracts for work, work and materials, or services apply to the arrangement.

8.29  In accordance with the distinction drawn by Article 3 CISG, two groups of transactions will be distinguished here: (i) instances where the goods are to be manufactured and (ii) instances where the seller has an obligation to supply services in addition to supplying the goods.

I.  Contracts for Goods to be Manufactured or Produced

8.30  All legal systems have devoted attention to contracts for goods to be manufactured. The importance of this kind of contract was already noted in the 1930s by Rabel who stated that a unified sales law not dealing with contracts for goods to be manufactured would be incomplete.56 Although it is now almost unanimously held that a contract for the sale of goods may also cover future (p. 116) goods57 if the goods are yet to be manufactured, the question arises whether this is a contract of sale or some other type of contract, be it a contract for work, work and materials, or services. In distinguishing both types of contracts, two approaches can be discerned. The first, rather traditional approach focuses on the importance of work carried out for the production compared to the actual supply of the goods. The second, more modern approach only excludes manufacturing contracts from the sale of goods where the buyer has provided a preponderant part of the materials.

1.  Substance of the Contract Approach

8.31  The first approach identified in the previous paragraph is still followed in a number of civil law countries.58 In this context they distinguish the type of contract according to the goods involved. Contracts for the manufacture of standard goods are typically classified as sales contracts while contracts for individually produced goods are classified as contracts for work or services.59 This distinction appears to assume that the efforts necessary for production are of greater importance where goods are individually produced, whereas they are of minor importance in cases of standard goods.

8.32  A similar approach has also found some favour in common law, particularly in England.60 The English decision of Robinson v Graves 61 appears to adopt this approach through its examination of the ‘substance of the contract’,62 although this decision has received limited acceptance in other common law jurisdictions.63 The USA employs the predominant-factor test, which is essentially the same approach,64 however within the USA, there is conflicting authority regarding the appropriate test to be used.65

2.  Outcome of the Contract Approach

8.33  The second approach does not rely on the efforts necessary for production, but in essence only on the question of whether and to what extent the buyer provides the materials to be used in the manufacture or production of the goods.

8.34  In the common law this approach can be discerned from the 1861 English case of Lee v Griffin.66 It appears to be preferred by a number of common law countries67 over that described in (p. 117) Robinson v Graves.68 The Lee v Griffin rule has been summarized as ‘if the contract is intended to result in transferring for a price from B to A a chattel in which A had no previous property, it is a contract for the sale of a chattel’.69

8.35  This approach is the current approach of many civil law systems70 as well as the CISG in Article 3(1).71

8.36  It follows from this approach that whenever the seller supplies the materials independent of whether standard (generic) goods or individually produced (specific) goods are contracted for, and whether the efforts necessary for production outweigh the importance of goods supplied, the sale of goods provisions apply.72 Thus, the classic example of an artist painting a portrait is a sale of goods under this approach whereas it would be a contract for services under the first approach outlined above.

8.37  In India the question of whether the nature of such transactions will be changed if the buyer monitors the process of manufacture has been addressed. In a number of cases the application of sales law was still favoured if the seller bore the costs of raw materials and property in the goods ultimately passed to the buyer.73

8.38  A contract for work or services can only be found if the buyer supplies the materials for the manufacture or production of the goods. Contracts for work or services are usually distinguished by asking whether the party who orders the goods undertakes to supply a substantial part of the materials necessary for the manufacture or production.74 The question of what constitutes a ‘substantial part’75 has been a matter of considerable dispute, particularly in the context of Article 3(1) CISG.76 The prevailing opinion uses an economic test as a starting point, comparing the economic values of the contributions77 of the buyer and the seller.78 Yet, in some cases the economic test may be inappropriate. Thus, in these cases regard is to be had additionally to the function of the contributions.79 With regard to the economic (p. 118) value test, sticking to fixed rates of percentages should be avoided in favour of a case-by-case basis.80

3.  Conclusion

8.39  The outcome of the contract approach appears preferable at least at the international level. It allows for a uniform application of sales law to contracts for goods against the price independent of the production efforts of the goods. This is particularly helpful as in a number of legal systems the rules on contracts for sales and contracts for work, work and materials, or services have not yet been assimilated. It does not seem appropriate to apply possibly completely different sets of rules to contracts which in essence relate to identical interests of the parties. An added bonus to the approach favoured here is that distinguishing standard and custom software for the purposes of the classification of contracts becomes unnecessary.81 Finally, the second approach provides the greatest degree of legal certainty. Although distinguishing standard goods and individually produced goods seems to be an easy task, the dividing line is not so clear when it comes to small, highly specialized markets, for which machines may not be produced as part of everyday business such as cars or furniture but only upon specific orders. Under the traditional approach in distinguishing contracts for sale and contracts for work, work and materials, or services, parties may be left in doubt as to which type of contract they have concluded. This is particularly harmful to the party ordering the goods as it has absolutely no influence on the classification of the contract and depends on whether the party it has contracted with regularly produces such goods. The approach favoured here applies sales law by default. It is the ordering party which may ‘opt out’ by providing the substantial part of the materials necessary for production. The legal situation is thus transparent to both parties.

II.  Contracts for Supply and Services

8.40  In many cases contracts are not clear-cut sales contracts or other types of contracts, but contain obligations that resemble two or more types of contracts. The question is which set of rules will govern such contracts or the respective obligations. This is particularly the case where the contract not only provides for goods to be supplied but also for services to be rendered. These may range from a mere incidental duty to provide information regarding the proper handling of the goods, to duties of installation, training and supervising the personnel of the buyer, and even further to cases where the sale itself is the incidental duty to an otherwise service contract. The determination of the applicable law has had traditional significance in both common law and civil law systems. For example, the sale of goods legislation in common law jurisdictions includes certain implied terms in sales contracts, and while generally understood to be implied into other types of supply contracts by the common law itself, this was not necessarily always clear.82 In civil law jurisdictions the classification of the contract can be of relevance when determining the applicable limitation period.

8.41  As with contracts for manufacture discussed above,83 the first question to be answered here is whether the agreement can be interpreted as one single contract. If this is the case the approaches taken to such mixed contracts differ among the legal systems.

(p. 119) 8.42  Without regard to the weight of the respective obligations, some systems either always apply sales law provisions84 or conversely the rules governing service contracts.85 In these systems it is the mere fact that there is a sale component or a service component that determines the applicable law. In a similar vein, Bolivia simply applies the provisions on contracts of work to any mixed transaction integrating goods to be transferred.86

8.43  Other jurisdictions favour a combination approach—that is, they apply a combination of different sets of rules to the contract.87 In the USA this can be equated to the sometimes used ‘gravamen of the action’ test.88 The underlying idea is that there should be no black and white scheme but that the subject matter in dispute should be the decisive criterion to determine the applicable provisions. In other words, where the specific question at issue relates to the sales elements of the contract, sales law applies.

8.44  The approach adopted by most jurisdictions is to give due regard to the respective weight of the sales obligations on the one hand and the services obligations on the other. The test typically seeks to identify the ‘substantial’, ‘predominant’, ‘principal’, or ‘preponderant’ part of the contract.89 However, there are a variety of differing approaches to determine the weight of each obligation. One possibility is to have regard only to the relative economic value of each type of obligation.90 This however should not be done rigidly; applying fixed rates of percentages should be avoided in favour of a case-by-case basis.91 A further possibility is to consider the economic value as one of a number of factors collectively, along with the parties’ own characterization of the contract, the pricing structure, and the weight given by the parties to the different obligations under the contract.92

8.45  The uniform laws follow the latter approach. Article 3(2) CISG and the OHADA Article 235(b) AUDCG both use the expression preponderant part.93 Consequently the service part of the contract must amount to more than 50 per cent to exclude the application of the uniform sale law.94 Such an approach is appropriate at the international level, given the potential difficulties which may arise in relation to the determination of any other applicable law which would (p. 120) necessarily be domestic in nature. This would create legal uncertainty and diminish to some extent the benefits of a uniform law.

III.  Turnkey Contracts

8.46  Turnkey contracts are a typical example where elements of supply of goods and services are combined. In essence these are contracts where one party engages another to design, build, and implement a project up to the point where the whole operation can immediately begin. The co-contractant then hands everything over to the original party, who then figuratively need only turn a key to commence the operation. Turnkey contracts are thus often highly complex contracts creating a network of interdependent obligations that could each be treated as separate contracts (sale of hardware, contract for services, engineering, procurement, construction, commissioning).

8.47  In some jurisdictions turnkey contracts are regarded as sui generis obligations95 whereas in others they are dealt with under the general heading of mixed contracts.96 Under the CISG it is generally held that Art 3(2) also governs turnkey contracts. However, in most of these contracts the sale of goods element is rarely at the forefront which in most instances will lead to the inapplicability of the CISG.97

Footnotes:

1  See for Afg Art 1035(1) CC; Are Art 489 CC; Arg Art 1323 CC; Aut § 1054 CC; Bhr Art 381 CC; Blr Art 424 CC; Bol Art 584 CC; Bra Art 481 CC; Che Art 184(1) CO; Chl Art 1793 CC; Col Art 1849 CC; Cri Art 1049 CC; Cub Art 334 CC; Cze Art 588 CC; Deu § 433 CC; Dza Art 351 CC; Ecu Art 1759 CC; Egy Art 418 CC; Esp Art 1.445 CC; Est § 208 CO; Fra Arts 1582, 1583 CC; Geo Art 477 CC; Grc Art 513 CC; Gtm Art 1790 CC; Hnd Art 1605 CC; Hrv Art 376 CC; Hun Art 365 CC; Irn Art 338 CC; Isr s 1 SL; Ita Art 1470 CC; Jor Art 465 CC; Kwt Art 454 CC; Lbn Art 372 CO; Lby Art 407 CC; Ltu Art 6.305 CC; Lva Art 2002 CC; Mar Art 478 CO, Safi, Aqd Al Bayaa, p 14; Mda Art 753 CC; Mex Art 2248 CC; Mrt Art 489 CO; Nic Art 2530 CC; Nld Art 7:1 CC; Pan Art 1215 CC; Per Art 1529 CC; Prt Art 874 CC; Pry Art 737 CC; Qat Art 419 CC; Slv Art 1597 CC; Syr Art 386 CC; Tun Art 564 CO, Al Ahmadi, p 16; Ury Art 1661 CC; USA §§ 2-301, 2-106(1) UCC; Ven 1474 CC; Yem Art 451 CC.

2  Arts 30, 53 CISG; OHADA Arts 250, 262 AUDCG; Art IV.A.1–1:202 DCFR.

3  eg most civil codes establish that the price must be paid in money: see Afg Art 1035(1) CC; Are Art 489 CC; Arg Art 1323 CC; Arm Art 470 CC; Aut § 1053 CC; Aze Art 567 CC; Bhr Art 381 CC; Blr Art 424 CC; Bol Art 584 CC; Bra Art 481 CC; Che see Art 184 CO, BaslerKommOR/Koller, Art 184, paras 19 et seq; Chl Art 1793 CC; Col Art 1849 CC; Cub Art 334 CC; Deu § 433(2) CC; Dza Art 351 CC; Ecu Art 1759 CC; Egy Art 418 CC; Gtm Art 1790 CC; Irn Art 338 CC; Isr s 1 SL; Jor Art 465 CC; Kaz Art 406 CC; Kgz Art 415 CC; Kwt Art 454 CC; Lbn Art 372 CO; Lby Art 407 CC; Ltu Art 6.305 CC; Lva Art 2002 CC; Mar Art 478 CO; Mex Art 2248 CC; Mrt Art 489 CO; Per Art 1529 CC; Pry Art 737 CC; Qat Art 419 CC; Slv Art 1597 CC; Syr Art 386 CC; Tun Art 564 CO; Ukr Art 655 CC; Ury Art 1661 CC; Uzb Art 386 CC; Yem Art 451 CC. Civil codes that do not specify that payment of the price is in money are: Cri Art 1049 CC; Irq Art 506 CC; Nic Art 2530 CC; Prt Art 874 CC; Ven 1474 CC; while some state that the price can be paid in money or other sign (signo): Esp Art 1.445 CC; Gha s 1 SGA (states that the price can wholly or partly consist of money); Hnd Art 1605 CC; Pan Art 1215 CC.

4  Art 4, sentence 2(b) CISG; OHADA AUDCG is silent on this issue and thus pursuant to Ordinary Law rules Art 237.

5  Aus (Vic) s 6(1) SGA; Can (BC) s 6(1) SGA; Eng s 2(1) SGA; Hkg s 3(1) SGO; Ind s 4(1) SGA; Irl s 1(1) SGA; Mys s 4(1) SGA; Nzl s 3(1) SGA; Sco s 2(1) SGA; Sgp s 2(1) SGA; USA § 2-106(1) UCC (‘Contract for sale’); Wal s 2(1) SGA.

7  Arabic/Middle East (Shari’a, Egy, Irq, Lbn, Syr) Basha, p 193; Shari’a Al Majalla Arts 232, 323; Alb Art 164 CC; Are Art 511 CC, FHC, challenge no 209, session dated 25 May 1997, JY 17, TO 19, p 463; Bel Art 1583 CC; Ben Art 1583 CC; Bfa Art 1583 CC; Bhr Art 389 CC; Bol Art 584 CC, Kaune Arteaga, vol. 2, p 125; Caf Art 1583 CC; Can (Qué) Art 1453 CC; Civ Art 1583 CC; Cmr Art 1583 CC; Cog Art 1583 CC; Cri Baudrit Carrillo, p 48; Dza Art 165 CC; Egy Art 204 CC; Fra Art 1583 CC; Gab Art 1583 CC; Gin Art 1583 CC; Gtm Arts 1791, 1790 CC; Irq Art 135 CC; Ita Art 1376 CC; Jor Art 485(a)(1) CC; Kwt Arts 463, 889 CC, COC, challenge no 404, session dated 11 November 2002, Civ Cir, JY 30, part 2, p 482; Lbn Art 394 CO; Lby Art 207 CC; Mar Art 491 CO; Mdg Art 1583 CC; Mex Art 2014 CC, Art 374 Com C, León Tovar, pp 152, 198, Vásquez del Mercado, p 200; Mli Art 1583 CC; Ner Art 1583 CC; Per Arts 1529, 947 CC; Prt Arts 879, 408(1) CC, Muñoz, p 26 citing ICC Final Award Case no 11570, de Lima Pinheiro, p 285; Pry Arts 737, 2061, 2062 CC, Castillo Freyre, Comentarios al Contrato de Compraventa, pp 124–6; Qat Art 246 CC; Rom Art 1295; Syr Art 205 CC; Tcd Art 1583 CC; Tgo Art 1583 CC; Tha Art 458 CC; Tun Arts 583, 584 CO, Al Ahamdi, p 291; USA (La) Art 2456 CC; Ven Arts 1 474, 1.161 CC, Aguilar Gorrondona, p 217; Yem Art 521 CC.

8  USA § 2-306 UCC. See also § 2-204(3) UCC (contract does not fail for indefiniteness by leaving one or several terms open); White/Summers, § 4-9. See eg Viva Vino Import Corp v Franese Vini Srl, US Dist Ct (ED Pa), 29 August 2000, CISG-online 675.

9  See Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 1, para 14 citing references.

10  See ibid citing references. See also Bridge, International Sale of Goods, para 11.19.

11  See Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 1, para 14.

12  Arg Arts 563–93 CPCC; Arm Arts 463 et seq CC; Aus (Vic) s 64 SGA; Aze Arts 414 et seq CC; Blr Arts 417 et seq CC; Bol Arts 523–49 CPC; Bra Arts 686 et seq CPC; Can (BC) s 72 SGA; Che Arts 229 et seq CO; Chl Arts 892–4 CPC; Col Arts 527 et seq CPC; Cri Arts 650 et seq CPC; Deu § 156 CC; Ecu Arts 475 et seq CPC; Egy Law no 100 of 1957 Concerning Some Commercial Sales; Eng s 57 SGA; Esp Arts 634 et seq JL; Fra L.321-1–L.321-3 Com C; Gtm Arts 224 et seq CPCC; Hkg s 60 SGO; Ind s 64 SGA; Irl s 58 SGA; Kaz Arts 915 et seq CC; Kgz Arts 409 et seq CC; Mex Arts 469 et seq CPC; Nzl s 57 SGA; Pan Arts 1700 et seq JC; Per Arts 725 et seq CPC; Prt Arts 886 et seq CPC; Rus Arts 447 et seq CC; Sco s 57 SGA; Sgp s 57 SGA; Slv Arts 593 et seq CPC; Tjk Arts 478 et seq CC; Ury Arts 387 et seq CPC; USA §2-328(2) UCC; Uzb Arts 378 et seq CC; Ven Arts 563–84 CPC; Wal s 57 SGA.

13  For this definition of auctions used in regard to Art 2(b) CISG, Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 2, para 20; see also Aus (Vic) s 64(b) SGA; Can (BC) s 72(b) SGA; Che Art 229 CO; Chn Art 51 Auction Law; Deu § 156 CC; Eng s 57(2) SGA; Fin s 9 Contracts Act; Hkg s 60(b) SGO; Ind s 64(2) SGA; Irl s 58(2) SGA; Nzl s 57(2) SGA; Sco s 57(2) SGA; Sgp s 57(b) SGA; Tur Art 225 CO; Twn Art 391 CC; Wal s 57(2) SGA.

14  See Art 2:202, Note 3(b)(cc) PECL.

15  See further paras 10.29 et seq.

16  See eg Art 2:202, Note 3(b)(cc) PECL (noting various jurisdictions); see also Che Art 231(2) CO; Deu § 156 sentence 2 CC; Fin s 9 Contracts Act; Grc Art 199 CC.

17  See further paras 10.34 et seq.

18  Aus (Vic) s 64(b) SGA; Can (BC) s 72(b) SGA; Eng s 57(2) SGA; Hkg s 60(b) SGO; Ind s 64(2) SGA; Irl s 58(2) SGA; Nzl s 57(2) SGA; Sco s 57(2) SGA; Sgp s 57(2) SGA; USA § 2-328(3) UCC; Wal s 57(2) SGA.

20  In Fra where there is a reserve price fixed by the seller, the auctioneer may not conclude the sale at a lower price and uses its discretion to withdraw the good. In common law jurisdictions withdrawal of goods from auction without a reserve may give rise to remedies against the seller or auctioneer but not entitle the highest bidder to sue on the basis of a concluded contract, see Benjamin’s Sale of Goods, para 2-005. In this context see also USA § 2-328(3) UCC noting in an auction without reserve, after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time.

21  Che Art 233(1) CO; Mex Art 2325 CC; Pan Art 1722 JL.

22  See Are Art 126(1) Federal Law no 18 of 1993; Egy Art 5 Law no 1100 of 1957.

23  Directive 97/7/EC of 4 June 1997.

24  See eg on this question: Aus Peter Smythe v Vincent Thomas [2007] NSWSC 844; Fra Tribunal de Grande Instance, 3 May 2000, Recueil Dalloz 2000, 640, obs C Caron: held that online auction organized by a company, which amounts to public auction, adversely affects the monopoly of commissaires-priseurs; USA Ebay Inc v Bidder’s Edge Inc US Dist Ct (ND Cal), 24 May 2000, 100 F Supp 2d 1058.

25  BGH, 3 November 2004, NJW (2005), 53.

26  See for Aut Anderl, RdW (2005), 401: as Aut does not define ‘auction’, the decision of the BGH cannot be transposed to Austrian law.

27  Consequently, those countries, which have transposed the CISG as specific rules on international sales have in some instances also transposed this exclusion for international sales into their sale of goods Acts; see for Isl § 5(3)(b) SGA; Nor § 5(3)(b) SGA.

28  See Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 2, para 19; MünchKommBGB/Westermann, Art 2 CISG, para 7; Soergel/Lüderitz/Fenge, Art 2 CISG, para 6; Witz/Salger/Lorenz/Lorenz, Art 2, para 6; but see Swain, ZEuP (2004), 20, 29, 30. This was different under ULIS where Art 5(1)(d) only excluded sales by authority of law or on execution or distress. Therefore, private auctions were not encompassed by this exception.

29  Schroeter, ZEuP (2004), 20ff; Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 2, para 21.

30  See Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 2, para 22; Witz/Salger/Lorenz/Lorenz, Art 2, para 6.

31  See eg O<caps>hada</caps> Art 241 AUDCG (implicit); Art IV.A–1:202 DCFR; Afg Art 1035(1) CC; Are Art 489 CC; Arg Art 1323 CC; Arm Art 470(1) CC; Aus (Vic) s 6(1) SGA; Aut § 1053 CC; Aze Art 567 CC; Bhr Art 381 CC; Blr Art 424 CC; Bol Art 584 CC; Bra Art 481 CC; Can (BC) s 6(1) SGA; Che Art 184 CO; Chl Art 1793 CC; Chn Art 130 PRC CL; Cmr s 1 SGA; Col Art 1849 CC; Cri Art 1049 CC; Cub Art 334 CC; Cze Art 588 CC; Deu § 433 CC; Dza Art 351 CC; Ecu Art 1759 CC; Egy Art 418 CC; Eng s 2(1) SGA; Esp Art 1445 CC; Est § 208(1) CO; Geo Art 457 CC; Gha s 1 SGA; Grc Art 513 CC; Gtm Art 1790 CC; Hkg s 3(1) SGO; Hnd Art 1605 CC; Hun Art 365 CC; Ind s 4(1) SGA; Irl s 1(1) SGA; Irn Art 338 CC; Ita Art 1470 CC; Jor Art 465 CC; Jpn Art 555 CC; Khm Art 515 CC; Kor Art 563 CC; Kwt Art 454 CC; Lbn Art 372 CO; Lby Art 407 CC; Ltu Art 6:305 CC; Lva Art 2002 CC; Mac Art 865 CC; Mar Art 478 CO; Mex Art 2248 CC; Mon Art 243 CC; Mrt Art 489 CO; Mwi s 1 SGA; Mys s 4(1) SGA; Nga s 1 SGA; Nic Art 2530 CC; Nld Art 7(1) CC; Nzl s 3(1) SGA; Pan Art 1215 CC; Per Art 1529 CC; Phl Art 1495 CC; Pol Art 535 CC; Prt Art 874 CC; Pry Art 737 CC; Qat Art 419 CC; Rus Art 454 CC; Sco s 2(1) SGA; Sgp s 2(1) SGA; Slv Art 1597 CC; Syr Art 386 CC; Tha Art 453 CCC; Tun Art 564 CO; Tur Art 207(1) CO; Twn Art 345 CC; Tza s 1 SGA; Uga s 1 SGA; Ukr Art 656 CC; Ury Art 1661 CC; Ven Art 1474 CC; Vnm Art 428 CC; Wal s 2(1) SGA; Yem Art 451 CC; Zmb s 1 SGA; Zwe s 1 SGA. But contrast USA § 2-304(1) UCC.

32  Mal refers to everything that someone can own.

33  See Shari’a Art 105 Al Majalla; Irq Art 506 CC.

34  See Shari’a Art 120(1) Al Majalla; Irq Art 507 CC.

35  Shari’a Art 379 Al Majalla; Afg Art 1173 CC; Are Arts 608, 611 CC; in Aut an interesting solution has been chosen: Arts 1045–54 CC govern barter, Arts 1055–89 CC govern sales. Some of the provisions on sales state that the rules on barter are to be applied correspondingly. These are the rules on passing of risk in Arts 1048, 1049 CC and the use of the goods in Arts 1050, 1051 CC (see Art 1064 CC); Bhr Art 450 CC; Blr Art 538 CC; Che Art 237 CO, see also Art 238 CO (where the party receiving the goods is dispossessed because of defective title or the goods are returned because of defects, the party which has incurred loss may choose between damages or restitution of the goods traded); Chn Art 175 PRC CL; Cze Art 611 CC; Deu § 480 CC; Dza Art 415 CC; Egy Art 485 CC; Est § 254 CO; Fra Arts 1703, 1707 CC; Hun Art 378 CC; Irq Art 597 CC; Jor Arts 553, 556 CC; Jpn Art 586 CC; Khm Art 567 CC; Kor Art 595 CC; Kwt Art 522 CC; Lby Art 474 CC; Ltu Art 6.432 CC; Lva Art 2092 CC; Mar Art 635 CO; Mda Art 824 CC; Mng Art 274 CC; Pol Art 604 CC; Qat Art 419 CC; Rus Art 567 CC; Svk Art 611 CC; Svn Art 529 CO; Syr Art 453 CC; Tun Art 724 CO; Twn Art 398 CC; USA § 2-304(1) UCC, Edwards, 36 J Marshall L Rev (2003), 421, 441, fn 153, Lithuanian Commerce Corp v Sara Lee Hosiery, US Dist Ct (D NJ), 30 July 2002, 219 F Supp 2d 600, Wheeler v Sunbelt Tool Co, Inc, Il Ct App, 17 March 1989, 537 NE 2d 1332; Vnm Art 463 CC; Yem Art 585 CC.

36  See Irn Art 465 CC.

37  See eg Ferrari, 15 J L & Com (1995), 53; Piltz, paras 2-22 et seq; Karollus, pp 26ff; Reinhart, Art 1, para 2; Herber/Czerwenka, CISG Art 1, para 5; Staudinger/Magnus, CISG Art 1, para 29; Winship, Scope, paras 1–22; El Saghir, p 370 but note that El Saghir observes the Egyptian Civil Code distinguishes between sales and barter, however his analysis omits Art 48 Egyptian Civil Code which states that the provisions governing sale apply to barter/exchange as far as the nature of exchange allows.

38  See Schwenzer/Kee, IHR (2009), 229ff; Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 1, para 11; Honnold/Flechtner, Art 2, para 56.1; Bridge, International Sale of Goods, para. 11.19 (no reason to exclude if rationalized as back to back sales with price set-off); Enderlein/Maskow, Art 53, para 2.5; CIETAC, 13 June 1989, CISG-online 865; Int Ct Ukrainian CCI, 10 October 2003, CISG-online 1268; Int Ct Russian CCI, 17 June 2004, CISG-online 1240; Int Ct Russian CCI, 9 March 2004, CISG-online 1184. See also Ziegel, 25 J L & Com (2005), 60 stating ‘the permissibility of a tribunal applying the CISG by analogy deserves further consideration’.

39  See Schwenzer/Kee, IHR (2009), 229ff; Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 1, para 11.

41  Aus (Vic) s 6(2) SGA; Can (BC) s 6(3) SGA; Eng s 2(3) SGA; Hkg s 3(2) SGO; Ind s 4(2) SGA; Irl s 1(2) SGA; Mys s 4(2) SGA; Nzl s 3(3) SGA; Sco s 2(3) SGA; Sgp s 2(3) SGA; Wal s 2(3) SGA.

42  Many common law jurisdictions have (or have in the past had) specific Hire Purchase Acts which also implied conditions and warranties with respect to conformity. See for example Eng Hire Purchase Act (1964); Ind Hire Purchase Act (1972); Mys Hire Purchase Act (1967); Sco Hire Purchase Act (1964); Sgp Hire Purchase Act (1969); Wal Hire Purchase Act (1964).

43  See Aus (Vic) s 31 SGA; Can (BC) s 30(3) SGA; Eng s 25(1) SGA; Hkg s 27(2) SGO; Ind s 30(2) SGA; Irl s 25(2) SGA; Mys s 30 SGA; Nzl s 27(2) SGA; Sco s 25(1) SGA; Sgp s 25 SGA; Wal s 25(1) SGA. The distinction is also relevant to those jurisdictions which have bills of sales legisation. See generally Ch 40.

44  See Common Law (Eng) Helby v Matthews [1895] AC 471 (HL).

46  But provisions may exist with respect to consumers.

47  See Hondius et al, pp 117ff citing references.

48  See eg USA § 2A-210 et seq UCC.

49  See eg USA § 2A-209 UCC. A similar solution is found in civil law jurisdictions where the lessor disclaims all liability and assigns its rights from the sales contract to the lessee.

50  See Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 1, para 16.

52  See Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 1, para 16; Staudinger/Magnus, Art 1 CISG, para 34. But see for consumer leasing Soergel/Lüderitz/Fenge, Art 3 CISG, para 6.

53  See the 1988 UNIDROIT Convention on International Financial Leasing (relevant to Blr, Fra, Hun, Ita, Ltv, Nga, Pan, Rus, Ukr, Uzb). See also Book IV Part B DCFR.

54  See Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 1, para 13.

55  See ibid.

57  For future goods see paras 6.16 et seq.

58  See eg Shari’a (Are) Al Shamsy, pp 40ff; Tun Al Ahmadi, p 23.

59  Aut § 1166 CC states that in cases of doubt sales law is to be applied to contracts for goods to be manufactured. This is, however, commonly interpreted to relate only to standard goods, see OGH, 6 October 2005, 2Ob85/05x, Koziol et al/P Bydlinski, § 1166, para 1; Che Honsell, OR BT, p 25; Chn Liu, p 396 (as cited by SJ Yang, p 40 distinguishing by generic or funigble nature); Fra Cass Com, 4 July 1989, JCP 1990 II 21515, obs Y Dagorne-Labbe, RTD civ 1990 105, obs P Rémy where the subject matter of the agreement is a good to be manufactured there is a work contract, not a sale, provided that the party supplying the good performed ‘a specific labour to meet the particular needs expressed by the client’. Conversely, a contract for a standard good to be manufactured will be characterized as a sale, see also Cass Com, 7 November 2006, Bull Civ IV, no 215; Contrats, conc Consom, 2007, no 62, n L Leveneur; Geo Art 629 CC; Ita Cass, 17 February 1983, CC Fasc 1983, 1497; Phl Spouses Christopher Kid Viajar & Cloria E Viajar v AMA Computer Learning Center Inc & AMA Computer College, Inc, CA-GR CV no 87186 (CA); Tur Rumpf, § 29, para 2.

60  Eng Benjamin’s Sale of Goods, para 1-042 describing this test as ‘now well established’, although see also discussion in para 1-048; Can Fridman, p 18.

61  [1935] 1 KB 579.

62  Although the case itself purports not to overrule the position taken in Lee v Griffin (1861) 1 B & S 272 discussed at para 8.34.

63  See para 8.34.

64  USA Bonebrake v Cox, US Ct App (8th Cir), 2 July 1974, 499 F 2d 951, White/Summers, § 10-2.

65  The gravamen of the action test is considered at para 8.43.

66  (1861) 1 B & S 272.

67  Aus Deta Nominees Pty ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 (VSC), but see also The Laws of Australia/Sutton, para 8.4.7, noting that the substance of contract test appears to have the greater weight of authority; Hkg Mak Ping Kui Trading as Yet Hing Knitting Garment Factory v Millionice Limited Trading as Blessings Trading Company [2001] HKCU 350 (HC); Sgp Management Corporation Strata Title Plan No 1166 v Chubb Sgp Pte Ltd [1999] 3 SLR 540, although the applicable law of this case was the UK, SGA (1979).

68  [1935] 1 KB 579, see para 8.32.

70  Chl Art 1996 CC; Cze Art 410 Com C; Deu § 651 CC generally follows the same approach but supplements the sale of goods provisions with some provisions dealing with contracts for work where the goods to be manufactured are not generic goods; Dnk Art 2(1) SGA; Ecu Art 1481 CC; Est § 208(2) CO; Fin § 2(1) SGA; Hnd Art 1762 CC; Isl § 2(1) SGA; Isr s 2 Sales Law; Lbn Art 658 CO; Nic Art 3044 CC; Nld Art 3:79 CC, Voute/Meijer, p 521; Nor Art 2(1) SGA; Ltu Art 6.306 CC; Lva Art 2214 CC; Slv Art 1784 CC; Svk Art 410 Com C; Swe Art 2(1) SGA.

71  Following the same approach Art IV.A–1:102 DCFR (‘primarily’).

72  See Fra Cass Com, 4 July 1989, JCP 1990 II 21515, obs Y Dagorne-Labbe, RTD civ 1990 105, obs P Rémy.

73  See Ind Glenmark Pharmaceuticals Ltd v ITO (TDS) [2009]; BDA Ltd v ITO [2006] 281 ITR 99 (BOM); CIT v Reebok Indian Company [2009] 221 CTR (Deli); Whirl Pool India Ltd v JCIT 16 SOT 435 (Deli).

74  East Asia SJ Yang, p 40; Chl Art 1996 CC; Cze Art 410 Com C; Ecu Art 1481 CC; Est § 208(2) CO; Hnd Art 1762 CC; Nic Art 3044 CC; Slv Art 1784 CC; Svk Art 410 Com C.

75  Common Law (UK) Benjamin’s Sale of Goods discusses the analogous concept of ‘principal materials’ at para 1-044.

76  For an overview of the debate and numerous further references see Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 3, para 4; Staudinger/Magnus, Art 3 CISG, para 14.

77  The relevant point in time is the conclusion of the contract, cf Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 3, para 4; Staudinger/Magnus, Art 3 CISG, para 18.

78  CISG-AC, Op 4 (Perales Viscasillas), Comments 2.6, 2.7; Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 3, para 3a; Honnold/Flechtner, para 59; Staudinger/Magnus, Art 3 CISG, para 14; MünchKommBGB/Westermann, Art 3 CISG, para 3; Brunner, Art 3, para 3; but see Witz/Salger/Lorenz/Lorenz, Art 3, para 3 who compare the value of the contributions to the purchase price of the goods. See also Twn, Supreme Court, Appeal case, no 831 (2000 Taiwan Calendar 89).

79  CISG Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 3, para 4; Common Law (UK) Benjamin’s Sale of Goods, para 1-044.

80  The numerous suggestions that have been made ranging from 15% to 50% are not helpful. See also CISG-AC, Op 4 (Perales Viscasillas), Comment 2.9; Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 3, para 7.

81  On the question of software see paras 7.24 et seq.

82  See Common Law (UK) Benjamin’s Sale of Goods, para 1-031.

83  See paras 8.30 et seq.

84  Cub Art 323.1 CC; Nic, Art 2811 CC.

85  Arg Art 1623 CC.

86  Bol Art 736 CC.

87  Asia see SJ Yang, pp 46ff; Aut, Deu, and Nld Hondius et al, pp 117ff; Arm Art 437 CC; Aze Art 390 CC; Blr Art 391 CC; Che see BaslerKommOR/Amstutz/Schluep, Intro Art 184, paras 3 et seq, 11 et seq; Cze Art 410 Com C; Deu see MünchKommBGB/Emmerich, § 311, para 46, Staudinger/Löwisch, § 311, paras 32 et seq, suggesting a multi-tier approach; Est § 208 (2) CO; Fra this approach is adopted in the case of ‘complex agreements’—that is, where several agreements serve one and the same economic purpose and where each and every legal regime applies (Civ 3, 16 March 1977, JCP 1978 II 18913); Kgz Art 382 CC; Lva Art 2214 CC; Ltu Art 6.306 CC; Rus Art 421(3) CC; Svk Art 410 Com C; Tjk Art 453 CC; Ukr Art 628 CC.

88  Meyers v Henderson Construction Co, NJ Sup Ct, 27 January 1977, 370 A 2d 547; Anthony Pools, a Div of Anthony Industries, Inc v Sheehan, Md Ct App, 25 January 1983, 455 A 2d 434; Gabriel, p 48.

89  Art 3(2) CISG; Asia SJ Yang, p 46; Esp Supreme Tribunal, Judgment no 1285/2006, of 07/12/2006, no Recurso 433/2000, Id Cendoj 28079110012006101236—STS 7562/2006; Fin s 2(2) SGA; Isl Art 2(2) SGA; Mex Art 1858 CC; Nor Art 2(2) SGA; Per Arts 1764–70 CC (title applicable norms when the supplier of services provides materials); Swe Art 2(2) SGA. For Common Law see discussion paras 8.31 et seq.

90  Shari’a Ashoush, p 63; Egy and Lby Abdel Rahman, p 47; Irq Al Fadly, p 382.

91  See CISG-AC, Op 4 (Perales Viscasillas), Comment 3.4; Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 3, paras 19 et seq.

92  See CISG-AC, Op 4 (Perales Viscasillas), Comment 3.4 with further references; Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 3, para 4.

93  The official Spanish version of the CISG uses ‘la parte principal ’ (principal part). The OHADA AUDCG 2011 has not yet been translated into English. In French it uses the expression ‘part prépondérante’, which is also used by the official French version of the CISG. It is also important to note that ‘preponderant part’ should not be confused with the expression ‘substantial part’ used in Art 3(1).

94  Schlechtriem/Schwenzer/Schwenzer/Hachem, Art 3, para 20 with further references.