Burden of Proof Under the CISG
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Description
Despite a recent court decision stating that the 1980 Vienna Sales Convention on Contracts for the International Sales of Goods (CISG) constitutes “an exhaustive body of rules,” the contrary is true. The CISG does not deal with all the issues that arise from international sales contracts. This can be easily derived from the text of the CISG itself. For instance, Article 4 states, on the one hand, that the CISG governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer and, on the other hand, except as otherwise expressly provided in it, that it is not concerned with either the validity of the contract, any of its provisions, any usage or the effect the contract may have on the property in the goods sold.' This provision is not the only evidence that the CISG is not an exhaustive body of rules. According to Article 5, the CISG does not apply to the liability of the seller for death or personal injury caused by the goods, something a recent German court decision apparently overlooked when it awarded damages to a buyer who had to compensate its own buyer for having been injured by the goods sold. These issues, as well as all the other issues that are excluded from the CISG's sphere of application (which have been referred to as “external gaps,” “lacunae praeter legem” or, simply, “issues not governed by the CISG”), must be distinguished from the matters governed by the CISG but which are not expressly settled in it (which have been referred to as “internal gaps” or “lacunae intra legem”). This distinction is necessary since different types of gaps are dealt with differently. Whereas the “external gaps” are to be filled by resorting to the “law applicable by virtue of the rules of private international law,” the internal gaps “are to be settled in conformity with the general principles on which the Convention is based.” Only where internal gaps cannot be settled in conformity with the general principles on which the Convention is based should recourse to the law applicable by virtue of rules of private international law be possible. Unfortunately the CISG gives only little guidance in order to distinguish between the aforementioned types of gaps. Thus, it is no surprise that in respect to some issues there is a dispute as to whether or not they are governed by the CISG. This is true where burden of proof is concerned, attracting the attention of many legal writers in recent years.
Source Publication
Review of the Convention on Contracts for the International Sale of Goods (CISG) 2000-2001
Source Editors/Authors
Pace International Law Review
Publication Date
2002
Recommended Citation
Ferrari, Franco, "Burden of Proof Under the CISG" (2002). Faculty Chapters. 598.
https://gretchen.law.nyu.edu/fac-chapt/598
