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As far as scholars and courts rely on “property” for contract characterization under the CISG, it has to be assumed that they refer to the respective national concept of property since no autonomous understanding of property under the CISG is currently adopted. Yet, defining a sales contract under the CISG with the assistance of national property law invites criticism because it cannot safeguard a uniform application due to the diverging notions of property under national laws.

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If property were a necessary element to define a CISG sales contract, differences between a relative and absolute understanding of property in the applicable property law could lead to an inconsistent scope of the CISG in violation of Article 7(1). For example, if both parties are aware that the goods in question were stolen, and the buyer would consequently not be able to become the absolute owner of the goods, one may deduce in a legal system with an absolute property concept that the contract is not a sales contract since no property in the sense of national property law is envisioned to be transferred.566 Whereas, in a relative property system, the buyer would receive property in the goods albeit not the best title, which is why the contract could be characterized as a sales contract envisioning the transfer of property.567 These differences in national property law should not have an impact on the contract and the applicability of the CISG since they are unrelated to the suitability of its rules.

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An example to the same effect can be formed based on the fact that some national laws might consider property not to exist with regard to certain objects or goods. For example, the discussions under national laws as to whether property of data either exists or should exist remain ongoing.568 Moreover, some legal systems might, for political or other reasons, consider that certain things should not be objects of commerce and might forbid 126 private property of them.569 In India, for example, the liquor trade is limited based on the argument that liquor is a res extra commercium.570 These two examples illustrate the lack of uniformity of the CISG’s scope of application that would result from diverging national property law if property were to form part of the definition of a CISG contract. In both cases, the relevant question should be whether data or the res extra commercium are goods under Article 1(1) of the CISG.571 This question can be answered without reverting to national law. If the respective national law regulates the validity of contracts concerning such objects, Article 4, sentence 2(a) of the CISG provides ample room for national law in this regard.572 This does not, however, change the contract characterization, which must stay free of national concepts in line with the mandate under Article 7(1) of the CISG to promote uniformity in the Convention’s application.573

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Scheuch rejects this opinion and excludes data sales from the ambit of the CISG due to the absence of a transfer of property under Article 30 of the CISG.574 In turn, Scheuch proposes an analogous application of the CISG to such contracts where property is not to be transferred.575 If this were a viable option, it would weaken the argument that property cannot form part of contract characterization under the CISG due to the otherwise jeopardized uniformity of the application: The CISG could be applied directly in countries that consider property to exist with regard to the object in question and in analogy in the remaining countries. Scheuch acknowledges that analogies are only possible within the scope of application of the CISG, since Article 7(2) of the CISG references “matters governed by this Convention”.576 He reasons that the scope of application was “undoubtedly” a matter governed by the Convention which would, thus, allow for analogies.577 Yet, this reasoning is circular: If the scope of application was itself a matter governed by this Convention, everything could be considered a matter of the Conven 127 tion. This is because every matter could be subject to the scope of application of any rule. While it is correct that the scope of application is governed by the Convention, it does not mean that contracts that fall outside the scope of application can also be governed by the CISG due to Article 7(2) of the CISG. This is exactly what the general opinion avoids by requiring the CISG to be applicable in the first place before applying Article 7(2).578 The correct question would rather be whether the sale of data is a matter governed by the CISG, especially if data is a good under Article 1(1). If it is, then the CISG can be applicable; if it is not, then it is not a matter governed by the Convention and, hence, no analogies are possible to remedy the lack of application.579 Since no analogous application of the CISG to contracts that do not envision a transfer of property is possible, the uniformity of application cannot be achieved with this artifice. The argument based on Article 7(1) of the CISG to substantiate why property should not be considered relevant to characterize a CISG contract, thus, stays intact.

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A few authors agree that property should not be a necessary part of the transaction.580 Yet, some rely on Article 41 of the CISG to argue that the seller may retain rights in the goods and not transfer property in the context of software sales: This would not remove the contract from the Convention’s scope, as Article 41 explicitly allows the buyer to agree to take the goods subject to a right or claim.581 This argument’s flaw lies in the disregard of the wording of Article 41 which is limited to third party rights. As has been argued above and against the apparently prevailing opinion, Article 41 excludes the seller’s rights and is, thus, not the correct basis to determine which rights the seller can retain in the goods.582 The fact that the buyer can agree to third party rights and claims does not give insight into whether the seller can retain rights in the goods without effect on the contract characterization.

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All things considered, introducing national, and hence, diverging elements such as property to define the scope of the CISG should be avoided.