236 IV. No contradiction between Article 4, sentence 2(b) CISG and Articles 30, 41 of the CISG
528
In contrast to doubts raised at the conference in 1964 when negotiating the provisions that later became Articles 4, sentence 2(b), 30 and 41 of the CISG,1100 the exclusion of the effect of the contract on the property in the goods from the scope of the CISG does not contradict Article 30. It fits squarely: The CISG governs the rights and obligations of the seller and the buyer toward each other, including the seller’s obligation to transfer the property. This obligation stipulates that the transfer has to take place and when the transfer has to take place if the seller wants to avoid breaching the contract. This obligation can be expressed without regulating whether, when, and how this transfer is actually effected and whether third parties retain rights in the goods, which is excluded by Article 4, sentence 2(b) of the CISG.1101
1100 | For example, Katona (Hungary), Diplomatic Conference on the Unification of Law Governing the International Sale of Goods, The Hague, 2–25 April 1964, Vol. I – Records, p. 96 regarding Arts. 8, 18, and 52 ULIS (Arts. 12 and 62 of the draft that was discussed at The Hague). |
1101 | Contra, Schmid, p. 50 who considers there to be a conflict which is ultimately resolved in favor of Arts. 30, 41 CISG due to the “except otherwise expressly provided in this Convention” in Art. 4, s. 2 CISG. |