Wednesday, September 11, 2019
CISG has too many incosisten provision Essay Example | Topics and Well Written Essays - 1500 words
CISG has too many incosisten provision - Essay Example United Nations Convention on Contracts for the International Sale of Goods (CISG) Susan J. Martin-Davidson, a Professor of Law at Southwestern Law School in Los Angeles, has commented that the ââ¬Å"place of business is not defined in the Conventionâ⬠which is the foremost important consideration in examining whether or not CISG would apply (Martin-Davidson, 2008-2009, 1). It was said that commentators have proposed that the place of business would refer to ââ¬Å"a permanent and regular place for the transacting of general businessâ⬠(Honnold, 1989). However, Martin-Davidson says that it is still unclear if such a term would include ââ¬Å"the location of a distributor, or other agent, who participates in the negotiation and performance of the contractâ⬠(Martin-Davidson, 2008-2009, 1). Even the final draft of CISG, the delegates were unable to address as to the issue if place of business would apply to ââ¬Å"local agents working on behalf of foreign principalsâ⬠(Martin-Davidson, 2008-2009, 1). Martin-Davidson also comments that ââ¬Å"matters relating to agencyâ⬠are not addressed by the Convention and does not also illustrate what ââ¬Å"activities of an agentâ⬠would be adequate to establish that ââ¬Å"the agent's place of businessâ⬠is that of the principal (Martin-Davidson, 2008-2009, 1). ... e closest relationship to the contract and its performanceâ⬠(Martin-Davidson, 2008-2009, 1), which place is so provided under Article 10 of the CISG and which basically determines the location of parties under Article 1 of the CISG (Bailey, 1999, 300). In Micro Data Base Systems, Inc. v. Dharma Systems, 148 F.3d 649, 653 (7th Cir. 1998), it explained that ââ¬Å"it is not clear whether a relationship linked to the formation of a contract is more or less important that a relationship linked to its performance.â⬠Such provision is even more complex with the proviso that instructs to have a regard ââ¬Å"to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contractâ⬠(CISG Article 10(a)). No suggestion however is offered as to kind of circumstance referred to in such provision (Martin-Davidson, 2008-2009, 1). The sale of goods under the CISG is also said not to have been defined under the Convention (Martin-Davidson, 2008-2009, 1). Although there have been ââ¬Å"scholarly commentaryâ⬠explaining that ââ¬Å"goods are basically only moveable, tangible objects,â⬠(Schlechtriem, 2005, 28), there were some reported decisions wherein the court had to decide the meaning of such a term (Landgericht, 2001, 1 & Oberlandesgericht, 1991, 1).à This is especially relevant to the application of CISG on the ââ¬Å"information stored in and read by computersâ⬠which include both the ââ¬Å"information stored on a disk or in a computerâ⬠considered to be ââ¬Å"intangible propertyâ⬠and not as goods (CISG, Article 2(f)), and the so-called ââ¬Å"licensed use of information,â⬠which does not satisfy ââ¬Å"the seller's obligation to ââ¬Ëtransfer the property in the goodsââ¬â¢Ã¢â¬ under Article 30 of CISG (Martin-Davidson, 2008-2009). Such concern however, was
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