537

The CISG does not preempt or modify claims based in national law in the following two scenarios. First, if a third party claims to be the owner and aims to revindicate or claim damages for the goods from either the buyer or the seller. Second, if one of the latter aims to revindicate the goods or claim damages from a third party. Vis-à-vis a third party, the questions of who should be in possession of the goods or who must be compensated are not matters that can be decided or influenced by a sales contract to which the third party is not a party. Furthermore, whether the claim is based on a right in rem and, consequently, may be considered superior compared to a claim by a different, unsecured creditor under the CISG, exceeds the CISG’s scope.1115 The ranking of creditors is outside the sales transaction.

538

This includes the seller’s claims based on property against the carrier who transports the goods to the buyer: Article 71(2) of the CISG allows the seller to stop the goods in transit if it becomes evident that the buyer will not perform a substantial part of the obligations because of a serious deficiency in the ability to perform, or in the creditworthiness or conduct in preparing to perform or in performing the contract. Sentence 2 of this paragraph limits its effect to the rights to the goods as between the seller and the buyer. This limitation is due to the mentioned limitation of the CISG’s scope to the sales contract and the parties to it: A seller’s right to stoppage that the carrier has to follow cannot result from a contract the carrier is not a party to. Such a right was deemed necessary in legal systems like French and English law where property passes with contract conclusion and where there are no obvious methods for the seller to safeguard the claim for the price by means 241 of a retention of property clause.1116 Similarly, the idea behind the right to stoppage in transit underlying Article 71(2) of the CISG is that even though property may have passed to the buyer, the seller should still be entitled to hold back the goods or suspend delivery under the circumstances referred to.1117 Thus, if the property has already passed, this right might improve the seller’s legal position toward the buyer. And if sellers have not yet transferred the property, their legal position is not adversely affected. The seller can, hence, rely on property in the goods toward the carrier and demand the stop of the delivery based on the applicable national property law. If the carrier follows the request and the prerequisites of Article 71(2) of the CISG were not fulfilled, the seller might be in breach of the sales contract. Yet, the seller’s breach of contract has, in principle, no direct relevance for the carrier. To find that the seller is allowed to stop the transit even though property has passed or even though the buyer has a bill of lading based on a loyalty duty and Article 71(2) of the CISG, as might have been found by the Norwegian Supreme Court, appears to potentially go beyond the constrains of the CISG’s scope of application.1118 This broad interpretation of the right to stoppage in transit has some tradition, for example, under English law, but also faces concerns due to the negative or limiting effect the contract would have on a third person, the carrier.1119

539

In the same vein, property in the goods may be relevant if a third party damages or destroys the goods. Many national tort laws will allocate the claim for compensation to the party that had property at the point in time when the goods were damaged. For example, section 823 of the German Civil Code protects absolute rights, such as property, and generally equips the owner with a damages claim against the third party.1120 The CISG does not influence which of the contractual parties has a claim vis-à-vis the third party. Yet, the CISG may lead to a different allocation of the entitlement to the compensation. For example, if goods under a retention of property clause are damaged and the buyer subsequently pays the full purchase price, the CISG requires the seller to either assign the claim against the third party 242 to the buyer or compensate the buyer accordingly. For the purposes of this work, this is not relevant, since the CISG does not base this allocation of the goods to property and does not preempt national law that provides one (or both) of the contractual parties with a claim against a third party.

540

Concluding, third party claims against one of the contractual parties or vice versa are not preempted by the CISG.